Questioning the D.C. Circuit, Harmonizing Board Precedent: Why Mere Presence of an Organizer Should Not Invalidate a Board Election

Abstract:     
The United States Court of Appeals for the District of Columbia has posited that mere presence of a union agent near a polling place is objectionable conduct. The National Labor Relations Board ("Board") should take the first opportunity to clarify that mere presence of a union organizer in the vicinity of an election is objectionable only when the sole possible purpose of the presence is surveillance. To harmonize its precedent, the Board should explicitly overrule all arguably contrary precedent and explain the distinction between electioneering and surveillance cases. This casenote provides an overview of the Board's electioneering precedent, discusses the case of Nathan Katz, 251 F.3d 981 (D.C. Cir. 2001), and then suggests the manner by which the Board can harmonize its precedents dealing with the presence of organizers in the election vicinity.

Keywords: labor law, electioneering, surveillance, union agent

JEL Classifications: K31, J59

Accepted Paper Series