In Community Options NY, Inc., 359 NLRB No. 165 (2013), the Board condoned the bribing of employees to vote against decertification by waiving union dues. Strong words, but no other conclusion can be reached after reviewing the Board’s decision.

The facts are straightforward. The union was certified in November 2009. The parties bargained and reached a tentative agreement on the terms of the initial contract. The tentative agreement included a union security clause requiring employees to begin paying union dues 30 days following ratification of the agreement. The ratification vote was scheduled for October 20, 2011, but before it could be held, a decertification petition was filed and the decertification vote was scheduled for November 10, 2011. At the October 20 ratification meeting, employees voiced concerns regarding the limited wage increase, so the union promised to waive the payment of dues for six months. The contract was ratified and the Union used the six months’ dues waiver as a campaign issue during the three weeks remaining before the election. Not surprisingly, the union was not decertified on November 10.

The hearing officer found the union’s conduct objectionable. The Board overruled the objection. The Board found that the waiving of dues was not a financial benefit because at the time the offer was made, prior to the ratification vote, there was no contractual requirement to pay dues. The Board reasoned that the contractual requirement was controlled by the employees – meaning if the employees did not ratify the contract, there would be no obligation to pay dues.

Even if the dues waiver conferred a financial benefit, the Board said this was permissible under Gulf States Canners, 242 NLRB 1326 (1979). The Board in Gulf States found the “mere fact that a payment in cash or in kind has been made to an eligible voter during a pre-election campaign does not require a per se finding that the employee’s right to make a free and uncoerced choice of a bargaining representative has been destroyed.” Rather, citing B & D Plastics, 302 NLRB 245 (1992), the Board stated the union had rebutted the inference of election interference by explaining that the waiver of dues was solely intended to influence the ratification vote. Ignoring the extraordinarily close proximity in time to the decertification election, the Board accepted this explanation. Adding insult to injury, the Board then blamed the victim, arguing that the employer had injected the issue of union dues into the campaign, and the union simply responded by reminding employees that dues had been waived for six months. What is most curious about the Board’s decision, however, is its citation in a footnote to NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973), where the Supreme Court recognized a “legitimate” union interest in waiving initiation fees in order to remove an “artificial obstacle” to employee support. Had the Board actually used the Savair case and analyzed the facts from that perspective, it likely would have reached the same, albeit a more palatable, conclusion.