7. The Organizing Campaign and Unfair Labor Practices

Employee Relations Exam 1

Conduct Doctrine and Laboratory Conditions

These two doctrines feed the two yardsticks on the tool slide ahead: an election OBJECTION (spoiled lab conditions, remedy is a rerun) versus an unfair labor practice (violates the Act, remedy is a Board order). The same act can trip both.

The Condct Doctrine - Judge the WHOLE campaign, not one act. The Board asks whether the pattern denied a free choice. One slip usually survives... a drumbeat does not.

Laboratory Conditions - Keep the election a clean experiment. Spoil it... by EITHER side... and the Board sets the vote aside and orders a rerun.

The Employer's Four Tripwires: TIPS

T - Theaten

I - Interogate

P - Promise

S - Surveil

What the Employer MAY vs MAY NOT Say Under Section 8(c)

MAY

Views, argument, opinion, and FACTS with no threat and no promise: dues and initiation costs the union's strike record "bargaining starts from scratch" "we'd prefer to stay union-free"

LINE

Gissel prediction: forecast consequences ONLY if fact-based and beyond your control.

No coercion (new benefits to buy votes / don’t pull a scheduled raise to blame the union)

MAY NOY SAY

Threats and promises: "we'll have to cut jobs", "I'll close this plant" a surprise mid-campaign raise "vote no and you'll get day shift"

Access To The Property

• Employee solicitation (talking) - Allowed on NON-working time. Employer may limit to non-work time only.

• Employee distribution (literature) - Allowed in NON-work areas on non-work time. Banned in work areas.

• Enforcement - Must be non-discriminatory... can't allow cookies and ban union cards.

• Nonemployee organizers (Lechmere) - Generally NO right to the property, even the parking lot. Rare exceptions only.

Captive Audience And The 24-Hour Rule

About 30 days - Captive-audience meetings ALLOWED on paid time. The union gets no equal time in that room

Final 24 hours - BLACKOUT: no mass, on-the-clock captive speeches.

Does The Board Police Lies?

The Rule:

• The Board will NOT overturn an election just because a party lied or exaggerated.

• Employees are treated as able to see through campaign propaganda and discount it. (Midland, 1982, overruling Hollywood Ceramics.)

The Exception:

• The Board DOES act on forged documents voters can't recognize as propaganda, or misuse of the NLRB's name and seal to fake an official endorsement. Then the source can't be judged fairly.

Objection Or Unfair Labor Practice?

Election Objection:

• Attacks - The fairness of one election

• Standard - Spoiled "laboratory conditions" (broad)

• When to file - ~7 days after the vote

• Remedy - Set aside the election, rerun

Unfair Labor Practice:

• Attacks - A violation of the Act (§8(a) / §8(b))

• Standard - Did it break the statute?

• When to file - Within 6 months of the conduct

• Remedy - Cease-and-desist, backpay, reinstatement, Gissel order

The two lessons: The same act can be BOTH. A supervisor threat is TIPS. A coworker threat usually needs a general atmosphere of fear or the election stands.

When The Employer Poisons The Well

1.) Gissel Packing Co: The union had a card majority

2.) Employer committed serious, pervasive ULPs

3.) A fair rerun election is now impossible

4.) Board orders recognition & bargaining without an election

The categories

1: outrageous and pervasive.

2: serious ULPs undermining a card majority (the workhorse).

3: minor... no order.

Where it stands now

Holley teaches Gissel as the rule. In 2023 the Board's Cemex decision made bargaining orders easier to trigger, and courts are split. The 4th Circuit enforced one (Garten Trucking, 2026, unpublished); the 6th rejected the framework; the Supreme Court stayed out. Gissel is durable; the trigger is contested.

HRBP During The Campaign

1.) Train supervisors on TIPS first. Before the petition, not after. Your front line is your biggest ULP risk.

2.) Campaign on facts and §8(c). Make the case against the union... just no threats, bribes, interrogation, or spying.

3.) Freeze nothing, launch nothing. Keep scheduled raises; roll out no new benefits. Business as usual is the safe harbor.

4.) Document, don't interrogate. Record what happens. Never go hunting for who started it.

5.) Call counsel before mass action. One bad pattern can cost the election itself under Gissel.