NLRB Orders New Election Despite Wage Increase Notices Being Mailed Before Election Petition Filed

A nursing home informed geriatric nursing assistants that they would receive wage increases via letters that were sent one day before the union filed its petition for an election. The employees voted 28-33 against union representation – a company victory that would be short-lived.

Though the letters were sent before the election petition was filed, the nurses received the notice of the wage increases during the time between the filing of the union’s petition and the election taking place. This time period is generally called the “critical period” when changes to terms and conditions of employment are prohibited. This freeze is to prevent employers from making workplace changes that could influence employees to vote against union representation.

An NLRB hearing officer ruled that the wage increase announcement was not objectionable because the letters were sent outside of the critical period – one day before the union filed its petition. Not surprising to readers of Roetzel Recap: Labor Relations, the Board overruled the ALJ and found the nursing home engaged in “objectionable conduct” during the critical period. The Board then ordered a new election be conducted.

Board Member Miscimarra, who was a management-side labor lawyer before being appointed to the Board, disagreed with the Board’s ruling. He disagreed with the Board’s finding that the employees learning about the wage increases during the critical period converted the wage increases into objectionable conduct. Miscimarra’s dissent stated that a party’s actions before an election should not be a basis for overturning an election even if those same actions would be objectionable conduct during the critical period. If only the Board had more Miscimarra’s on it; unfortunately, only two of the five Board Members are pro-management.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.

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