NLRB Elaborates on Harborside and Glen’s Market

In Millard Refrigerated Services, Inc., 345 NLRB No. 95 (2005), the Board elaborated on the cases of Harborside and Glen’s Market and the law governing pro-union supervisors who urge employees to sign authorization cards.

As noted in a previous post, the Board in Harborside established the rule that a pro-union supervisor commits objectionable conduct if she solicits authorization cards, absent mitigating circumstances. In Glen’s Market, however, the Board held that a pro-union supervisor did not commit objectionable conduct when she solicited the authorization cards of employees not under her supervision. In so holding, the Board relied on the fact that the soliciting supervisor in that case did not have supervisory authority over the solicited employees. The Board reasoned that, under the circumstances in that case, the supervisor’s conduct did not interfere with the employees’ free choice.

In Millard Refrigerated Services, the Board held that a pro-union supervisor committed objectionable conduct when he solicited the card of an employee whom he did not supervise. In that case, supervisor Steen supervised employee Elliott. Supervisor Rork supervised other employees, not Elliott. Rork asked Elliott to sign an authorization card. Around the same time, Elliott’s supervisor, Steen, asked other employees to sign authorization cards.

The Board held that supervisor Rork committed objectionable conduct when he asked employee Elliott to sign an authorization card, even though Rork did not supervise Elliott. The Board distinguished Glen’s Market. In Glen’s Market, the supervisor of the solicited employee had not asked any employees to sign authorization cards. In contrast, in Millard Refrigerated Services, Elliott’s supervisor, Steen, had asked other employees to sign cards. The Board explained that Elliott could reasonably conclude that his own supervisor, Steen, wished that he would sign a card. Consequently, the Board found that Rork’s solicitation of Elliott, in that context, interfered with Elliott’s free choice.

Member Liebman dissented. She read Glen’s Market as establishing the rule that “an employee reasonably could not be affected by conduct directed at him by a prounion supervisor who does not supervise that employee.” Under Member Liebman’s interpretation, Elliott could not reasonably have been affected by Rork’s pro-union conduct.

Unions must be careful when using supervisors to solicit authorization cards in light of Millard Refrigerated Services. Even if supervisors limit their solicitations to employees who are outside of their chain of command, the Board might still invalidate an election.