Marshall Babson Quoted in Law360
"NLRB Ruling Opens Door to More Off-Site Union Elections"

Seyfarth Shaw New York Labor & Employment partner Marshall Babson was quoted in Law360 on March 9. The article discussed a National Labor Relations Board (NLRB) decision which marks a departure from NLRB practice and is said to minimize employers' influence during union elections.

Marshall said, "The Dec. 29 decision is troubling for business because it comes against the backdrop of NLRB moves— including the expedited election rule slated to go into effect April 30 — that limit employers' ability to take part in the union election process."

"The idea that you're going to effectively oust the employer from any role at all in a process that the Supreme Court has so clearly and unambiguously said that the employer has a right to participate vigorously and fully in is pretty breathtaking, in my view,” he added..

The NLRB issued four factors that a union regional director should consider when picking an election site: 1) the petitioner's objection to having the rerun election on the employers' premises against the employer's request that it be held on-site; 2) the employer's "prior unlawful and objectionable conduct"; 3) the advantage the employer would have should the election be held on premises it owns or controls; and 4) potential alternative sites.

"One would have to have exceedingly narrow vision to not understand how the four factors ... might be applied generally to justify off-site elections in the first instance," Marshall said.

Given former NLRB member Craig Becker's view that all mandatory union election campaign meets conducted by the employer between filing of the petition and election are impermissibly coercive, Marshall remarked, "Whether the argument will gain traction with the current NLRB remains unclear, but the dissent teed the question up in a clear and bold way that begs for attention."

“It certainly is a hypothesis that's been set down fully and in a manner that's never been done before,” he said.