The U.S. Court of Appeals for the District of Columbia Circuit recently ruled that the NLRB properly certified the union's victory among registered hospital nurses despite pro-union conduct by supervisory charge nurses. After the union won the election among registered nurses 72-39, the employer filed objections claiming that the conduct of supervisory charge nurses tainted the results. Several charge nurses spoke in favor of the union, attended union meetings and signed authorization cards in front of registered nurses. One charge nurse, Silva, approached or sent text messages to RNs to notify them of union meetings. Another, Gilliatt, told about 10 RNs to attend the meetings and told some RNs to sign authorization cards. Both Silva and Gilliatt were subsequently promoted, and then they began actively campaigning against the union in the days before the election. Gilliatt told 20-30 RNs she no longer supported the union, and Silva told four. In addition, they both signed personalized company letters urging the RNs to vote against the union. The letters reached most of the RNs.
With regard to the first group of charge nurses, the court used the Board's two-pronged Harborside test to decide whether the conduct required setting aside the election. First, the court determined that signing authorization cards in front of the RNs, attending union meetings and speaking in favor of the union did not rise to the level of interference with the RNs' exercise of free choice. Second, the court found that there was no evidence that the conduct, even if it did interfere with freedom of choice, materially affected the outcome of the election, which the union won by a large margin.
With regard to the actions of Silva and Gilliatt, the court found that even though their solicitation of authorization cards could be considered coercive, their conduct was mitigated by their actions after they were promoted. In the opinion of the court, by the time of the election the RNs would have had no reason to feel pro-union coercion or interference from Gilliatt's or Silva's earlier behavior. According to the court, ". . . any registered nurses who felt pressured by Gilliatt or Silva would have felt coerced to vote against the Union."