The National Labor Relations Board has unanimously set aside a union’s representation election victory because of threats by a former employee who, the Board decided, had “apparent authority” to speak for the union. See Bellagio, LLC, 359 NLRB No. 128 (May 31, 2013).

The employer operates a hotel and casino in Las Vegas, Nevada. The union filed a petition to represent a small group of audio and video engineers in the employer’s Production Services Department. Shortly before the petition was filed, Alphonse Torres, an audio engineer who frequently worked at the hotel-casino on behalf of a third-party contractor, approached the union’s business agent and offered to help with the organizing drive. Despite declining Torres’s offer, the business agent permitted Torres to attend a union organizing meeting prior to the election.  

During the campaign, Torres told an employee eligible to vote that the business agent had asked him (Torres) to contact the employee to discuss organizing.   After the employee expressed opposition to the union, Torres told the employee two days prior to the election, “Bro, you know, if this vote goes through, you’re toast,” and “[t]he vote is going to go through…you better not vote.”

The employee shared Torres’s comments with two other employees in the voting unit before the balloting. The Board held that Torres’s comments were attributable to the union based on his apparent authority to speak on behalf of the union.    The Board gave weight to two key facts: (1) Torres represented to an employee that the business agent requested he speak with employees about the organizing drive; and (2) the business agent did not remove Torres from the union organizing meeting after Torres offered to assist in the organizing drive on behalf of the union. 

Having found the comments were attributable to the union, the Board decided they were objectionable because they could reasonably interfere with the employees’ free choice in the election. The Board, therefore, set aside the union's election victory and directed another election.    

An employer faced with a loss in a Board election has the legal right to file objections asking the Board to overturn the election results and conduct a re-run election, if a union has engaged in conduct that interfered with "laboratory conditions" necessary to a fair election. Frequently, however, an employer encounters difficulty proving the union is responsible for the actions of the individual(s) who committed the objectionable conduct. This case may assist employers in proving the union’s responsibility for that conduct.