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June 16 — A union’s loss in a representation election involving a Cleveland contractor should be set aside because the company unlawfully threatened employees with business closure, a divided National Labor Relations Board held ( Ace Heating & Air Conditioning Co. , 2016 BL 190570, No. 364 N.L.R.B. No. 22, 6/15/16 ).
The board found June 15 that Ace Heating & Air Conditioning Co. violated Section 8(a)(1) of the National Labor Relations Act and engaged in objectionable conduct. Ace did so through a supervisor's threat to shutter the business if the company’s eight full-time field installers and service technicians chose Sheet Metal Workers International Association Local 33 to represent them, the board said.
The decision shows that a threatening speaker's status as an employer's supervisor or agent will overshadow evidence of the speaker's pro-union intentions in the determination of whether the threat might have influenced employees not to exercise their NLRA-protected rights.
Ace is liable for the direct threat made to four employees a week before the May 2014 election by Ed Dudek, who typically relayed company owner Mitchell Stephen's orders to the installers and service technicians at job sites, the board concluded. It said Dudek was Ace's statutory supervisor, and even if he wasn't, he was the company's agent who had apparent authority to speak for it.
The board reversed an administrative law judge's finding that Dudek's threat wasn't an NLRA violation, and it directed a second election. But the board affirmed the judge's dismissal of other union allegations, including one that Ace unlawfully offered to pay employees for voting against the union.
NLRB Chairman Mark Gaston Pearce and Member Lauren McFerran joined the decision. Member Philip A. Miscimarra dissented in part, saying he would find that Dudek's threat wasn't a violation and uphold the election. Dudek was the “leading supporter of and advocate for” the union, and there was no sign that Stephen said anything union-related to employees, Miscimarra said.
The judge said Dudek acted as an agent of the union and not the company during the period leading up to the election. Dudek signed a union authorization card, facilitated the union’s contact with employees and exchanged text messages with a union organizer, the judge determined.
But on review, the board said the NLRB has consistently held that an employer is bound by the acts and statements of its supervisors regardless of whether it has specifically authorized them.
“This principle applies even where the supervisors who made allegedly unlawful statements had, on prior occasions, expressed sentiments or engaged in conduct that communicated to employees that the supervisors’ sympathies were aligned with employees’ organizing efforts or with the union,” the board said.
Even if Dudek wasn't a statutory supervisor, he was actually the company's agent at the relevant time, the board found. Employees saw Dudek as “Stephen's conduit on work-related matters,” it said, and he made the threat while handing them their paychecks.
Widman & Franklin LLC represented the union. Meyers Roman, Friedberg & Lewis represented Ace.
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/NLRB_Board_Decision_Ace_Heating__Air_Conditioning_Co_Inc_364_NLRB.
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