A supervisor gives a pro-union petition to her subordinates and asks them to sign it. Not surprisingly, some of them do so. The supervisor then remains actively involved in the organizing campaign. She speaks at union meetings and wears union insignia. In the secret ballot election the NLRB conducts, the union wins the majority of the votes cast.

Should the election result be set aside based on the supervisory employee's conduct? Not according to a decision released yesterday by the NLRB. In Terry Machine Co., 356 N.L.R.B. No. 120 (2011), the NLRB held (pdf) in a 2-1 decision that the solicitation of signatures on a union representation petition by seven different supervisors didn't warrant setting aside the election results.

The majority, applying a 2004 NLRB decision, reasoned that the employer's anti-union campaign "mitigated" the effect of the supervisors' activities. In particular, the majority noted that the employer threatened to terminate the pro-union supervisors, and that the supervisors communicated that threat to employees. Some of the supervisors, however, continued to campaign for the union even after the threat, without any repercussion.

Member Hayes disagreed with the majority's "mitigation" finding. He noted that the dissemination of the threat to fire the supervisors was not done by the employer, but by the supervisors themselves. Moreover, he did not believe that the antiunion campaign could mitigate the effect of pro-union supervisors soliciting support for the union and opposing that very campaign.

Another holding in the case is also significant. The election that the employer challenged occurred in 1999. The case, however, had a tortured procedural background, having previously been before the NLRB three different occasions. Despite the passage of time, the majority certified the union as the representative for the employees in the bargaining unit. Member Hayes dissented on this point as well, noting that court of appeals precedent drew into question the enforceability of any order requiring bargaining with the union in light of the substantial delay in the NLRB's handling of the case.