University of Louisville Law Faculty Blog
Another tip that Chief Justice Roberts shares with Bryan Garner is a great method to prepare for questions from a judge who is not as familiar with the legal area as you are. His Honor states that you should be able to tell a lay person in five minutes, or less, what the case is about and why you should win. If the lay person cannot understand what the case is about or does not see why you should win in that time, his Honor suggests that you need to rethink the argument again.
Here's the final excerpt from my article.
If the Board is to harmonize its precedent, it must clarify the distinction between electioneering and surveillance cases. Consistent with precedent, it should find mere presence objectionable only when the sole possible purpose of the presence is surveillance. Patrick Industries,105 like
Blazes Broiler and Electric Hose and Rubber Company, makes clear that presence is objectionable only when it is without a justification other than observation of employees.106 In Patrick Industries, two managers and a supervisor were gathered "at a location within a few feet of the route taken by most . . . employees as they went to vote, thirty-five feet from the [polling room], and seventy-two feet from the voting booth."107 The managers and supervisor stood there because a machine located there was operating erratically. They remained there for at least twenty minutes, discussing the machine, its production output, and also a broken air compressor.108 The Board held that the conduct was not objectionable.
The ALJ reasoned that "if the supervisors' purpose in standing near the [machine] was to convey to the employees that they were being watched . . . [the] objection might well be a valid one."109 However, the ALJ concluded that the supervisors were at the location for work-related reasons.110
The Board should follow the suggestion of Member Hunter in Blazes Broiler,111 and explicitly overrule Performance Measurement to the extent it appears to set forth a per se rule prohibiting presence in areas where employees pass to get to the polls. Indeed, to the extent Performance Measurement can be interpreted as an electioneering case, it has been implicitly overruled. It is pre-Milchem, pre-Boston Insulated Wire, and has been implicitly overruled to the extent it contradicts those cases. Milchem intended to set forth a clear standard, which had not been enunciated in prior decisions, for dealing with the effect of conversations between parties to the election and employees preparing to vote.112 And, Boston Insulated Wire made absolutely clear that no per se rule governs electioneering; rather, the Board considers a number of factors to find impermissible electioneering.113
It makes little sense to have a rule stricter than Milchem's, which applies to those standing in line to vote, applicable at a spot far removed from the polling place. Yet, the D.C. Circuit's interpretation of Electric Hose and Performance Measurement in Nathan Katz arguably leads to exactly this result. Milchem prohibits only sustained conversation with employees waiting to vote.114 Thus, if the D.C. Circuit's interpretation is correct, a union agent can be present in the polling place and engage in limited conversation with employees without objection; but, if she is present outside the polling place in an area which employees pass to vote, even with substantial justification, the conduct is objectionable.
105. Patrick Industries, 318 N.L.R.B. 245 (1995).
106. Blazes Broiler, 274 N.L.R.B. 1031 (1985) (holding that a union representative seated in a restaurant approximately thirty feet from the entrance to the voting room was not objectionable because he could not observe employees entering the voting room from his vantage point); Electric Hose and Rubber Co., 262 N.L.R.B. 186, 216 (1982).
107. Patrick Industries, 318 N.L.R.B. at 256.
108. Id. at 256.
111. 274 N.L.R.B. 1031, 1031 n.3 (1985).
112. Milchem, Inc., 170 N.L.R.B. 362, 362 (1968).
113. Boston Insulated Wire, 259 N.L.R.B. 1118, 1118 (1982). This case followed Star Expansion Industries, 170 N.L.R.B. 364 (1968), which was decided the same day as Milchem and addressed electioneering outside, but in close proximity to, the polling place.
114. Milchem, 170 N.L.R.B. at 363.
In a recent entry, I noted Coach Rick Pitino's "ability to inspire" and made a comparable analogy to deans. Some deans inspire their faculty, encourage them to greater heights, and help faculty bring honor and glory to their institutions. A few deans create destructive atmospheres that tend to pull their faculties down.
An interesting Pitinoism refers to the "name on the jersey." As Pitino has said more than once, he wants players who are more concerned about the name on the front of their jerseys than the names on the back of their jerseys. And, indeed, Pitino is a master at creating an atmosphere which encourages players to think about the name on the front of their jerseys. This approach results in strong team play and terrific basketball teams.
Even though Pitino made his reference in a basketball context, the reference is perhaps as apt (if not more apt) as applied deans. Indeed, every dean should ask herself whether she is more focused on the name on the front of her jersey than the one on the back. Unquestionably, decanal attitudes have a big impact on faculty attitudes. A dean that is open, collegial, supportive, communicative and encouraging is much more likely to produce a faculty that is focused on the name on the front of their jerseys. By contrast, a dean that is uncollegial, punitive, plays favorites and arbitrarily hands out rewards, encourages faculty to think about the names on the backs of their jerseys. A sick atmosphere necessarily creates sick behaviors.
Indeed, if one considers why Pitino is so successful at encouraging players to think about the names on the front of their jerseys, one keeps coming back to the superb leadership that Coach Pitino provides. If he were different, his teams would be different.
Another excerpt from my article.
Unfortunately, there have been other cases, besides Nathan Katz, where the courts and even the Board have treated Performance Measurement as an electioneering, rather than a surveillance, case. For instance, the United States Court of Appeals for the Ninth Circuit has interpreted Performance Measurement to stand for the principle that "[i]t might be possible to find that areas some distance from the polls should be closed to campaigning because they had to be passed through in order to vote."103 The Board in Herb A. Cook interpreted Performance Measurement to support the Milchem principle requiring that "interested parties refrain from electioneering or even talking to employees in the polling area waiting to vote."104
103. Robert's Tours, Inc. v. NLRB, 578 F.2d 242, 244 (9th Cir. 1978). The conclusion of law itself is not in error, because, in certain circumstances, weighing the Boston Insulated factors may lead to the conclusion that campaigning in an area voters must pass is objectionable. The difficulty is in interpreting Performance Measurement, in which there was no evidence of campaigning by the company president, as supporting such a conclusion.
104. Herb A. Cook, 182 NLRB 796, 810 (1970). This principle accurately reflects Milchem. In Performance Measurement, however, there was no evidence of the company president conversing with employees, and, thus, no support for such an interpretation of the case.
Here is an excerpt from my article that mentions cases that have properly distinguished surveillance cases from electioneering cases.
It is unfortunate that the Board did not have the opportunity to harmonize its precedents, in the Nathan Katz case, as directed. It could have done so in the following manner.
In Nathan Katz, the D.C. Circuit confused a line of cases that deal with surveillance as objectionable conduct, with the line of cases that determines when electioneering is objectionable conduct. Employer conduct that interferes with employees' protected section 7 rights to join or refrain from joining a union violates section 8(a)(1) of the National Labor Relations Act.79 Employer surveillance has long been held to be such an unfair labor practice.80 This is because surveillance interferes with employees' protected rights and tends to inhibit employees' future union activities.81 Violations of section 8(a)(1) often amount to objectionable election activity.82 In addition, conduct that does not independently constitute an unfair labor practice can be found to constitute objectionable activity.83 Electioneering is one such type of conduct.84 The Board prohibits electioneering at or near the polls in order to "safeguard its electoral process from conduct which inhibits the free exercise of employee choice."85
As recognized by the ALJ, Electric Hose and Performance Measurement are not electioneering cases, they are surveillance cases. Electric Hose is clearly a surveillance case on its face.86 The ALJ's holding was based on the rationale that the supervisor's implicit purpose in observing the voting was to let the employees know they were being watched.87
Also, Performance Measurement has correctly been interpreted as a surveillance case by the majority of cases to rely upon it. In Eagle-Picher Industries, Inc., two supervisors briefly stood in the aisle leading to the voting area while voting was ongoing.88 The union alleged in its objection that the supervisors had engaged in improper electioneering. The ALJ found that this allegation was not supported by the evidence. The ALJ further discussed how, by claiming that the supervisors' presence in the aisle "would have made the employees feel ‘under the glass' of the employer,"89 the union was actually claiming improper surveillance, not improper electioneering. Moreover, the ALJ held, in reliance on Performance Measurement, that the supervisors' conduct "could not have given any employees the impression that their voting was undersurveillance."90
The holding of Performance Measurement was applied to another case, ITT Automotive,91 which featured extensive testimony regarding alleged surveillance. Several employees testified that managers and a supervisor were continuously standing in a circle in an area where employees had to pass through to vote and where the managers and supervisor could watch the employees waiting in line to vote.92 Relying on Performance Measurement, the ALJ found that the continued presence of the managers and supervisor at a location employees were required to pass, "from where they observed the employees while waiting . . . outside the door to the polling place" interfered with the election.93
In Blazes Broiler,94 a union agent sat in the employer restaurant in a section open to the public, during the second voting session. He was approximately twenty to thirty feet from the door to the banquet room where the voting occurred. While sitting, his view of the entrance to the banquet room was blocked by a five-foot wall. He only occasionally stood up. Employees entering and leaving the corridor leading to the banquet room passed within a few feet of the union agent.95 The employer argued, in reliance on Performance Measurement, that the union agent's presence was objectionable. The hearing officer interpreted Performance Measurement as a "non-electioneering case."96 The hearing officer focused on the alleged surveillance stating that Performance Measurement involves "an Employer's President who stationed himself by the door to the voting area where he could observe exactly who went in to vote."97 The hearing officer distinguished Performance Measurement because, in the instant case, the union agent had no direct view of the entrance to the banquet room. The hearing officer held that although the union agent "could see who entered the hallway leading to the banquet room . . . [h]e had no way of knowing who was entering the hallway to vote . . . ."98 Thus, the Board held that the union agent's conduct was not objectionable.99
Member Hunter concurred, but suggested that he would overrulePerformance Measurement.100 He disagreed with Performance Measurement to the extent it "established a per se rule that the mere presence of a party to an election outside the polling area constitutes objectionable conduct."101 Instead, he recommended following Boston Insulated Wire by examining the conduct of a party that stays outside the polling area during an election under the totality of the circumstances.102
79. National Labor Relations Act, Sections 7 & 8, 29 U.S.C. §§ 157, 158 (2000).
80. THE DEVELOPING LABOR LAW: THE BOARD, THE COURTS, AND THE NATIONAL LABOR
RELATIONS ACT 162, (Patrick Hardin ed., 4th ed. 2001).
81. Id. at 163.
82. Id. at 93.
83. Id. at 445.
84. Id. at 465.
85. Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118, 1118 (1982).
86. Electric Hose and Rubber Co., 262 N.L.R.B. 186 (1982).
87. Id. at 216.
88. Eagle-Picher Industries, Inc., 331 N.L.R.B. 169, 185 (2000).
91. ITT Automotive, 324 N.L.R.B. 609, 623 (1997).
92. Id. at 623-24.
93. Id. at 625.
94. 274 N.L.R.B. 1031 (1985).
95. Id. at 1032.
99. Id. at 1031-32.
100. Id. at 1031 n.3.
Another excerpt from my article.
Considering all the applicable factors, the Board has found that electioneering was not objectionable in several additional cases. In Alson Manufacturing,14 three employees' testimony was credited as follows. One witness saw two union representatives standing in the parking lot outside the warehouse approximately one hundred feet away from the voting booth speaking with some other employees. The second witness testified that he saw the remaining union representative talking to a group of employees approximately one hundred feet away from the voting booth and that he saw one of the employees in the group later vote. The third witness saw the same union representative standing twenty-five feet from the voter check-in table while the election was ongoing but voting had finished. He did not see the representative speak to any employee.15
The Board held that the union representative's conduct was not objectionable.16 The Administrative Law Judge (ALJ) reasoned that while the conversation occurred near the polling area, the conduct was de minimis in nature. The representative spoke with a group of employees, only one of which had not voted. That vote could not have affected the outcome of the election. The ALJ further reasoned that the representative's mere presence approximately twenty-five feet from the voting booth after voting had been completed could not affect the outcome of the election.17
In Sterling Faucet Co.,18 four employees were campaigning for a union for approximately twenty minutes outside the cafeteria where the election was held. The employees distributed union literature while wearing union buttons and hats. Two employees stood by the time clock; the third was approximately forty feet from the cafeteria door; and the fourth was approximately six feet from the door. All stood in the main aisle which the employees normally followed from the entrance, at the time clock, to the cafeteria.19 The Board held that the employees' electioneering did not constitute objectionable conduct. The ALJ reasoned that the electioneering did not occur in a no-electioneering area.20 Rather, the nearest electioneerer stood approximately six feet from the door of the cafeteria and could not be seen from within the polling place.21 The ALJ further reasoned that at no time were any employees waiting in line outside of the cafeteria to vote.22
In Harold W. Moore,23 the election was conducted at a warehouse. The voting area was about thirty feet from the entrance to the warehouse. Three union representatives stood in the parking lot outside the warehouse approximately thirty feet from the entrance. They spoke withapproximately six to eight employees. The conversations lasted from ten to fifteen minutes and occurred while the polls were open.24 The Board held that the conversations, even if deemed to be electioneering, were not objectionable. The Board reasoned that the electioneering was not substantial and did not take place in a no-electioneering area. The Board held that the electioneering was not so near the polls, under the circumstances, as to be objectionable.25
The D.C. Circuit has also applied these factors to find electioneering unobjectionable. In Overnite Transportation Co. v. NLRB,26 the union held a "raucous" rally near the polling center.27 It was attended by an international organizer, the international president, and the president of the local union. Approximately one hundred employees gathered, held acookout, and dispensed free food and drink. The crowd constantly hooted, hollered, and chanted slogans. Passing truckers honked their horns as they drove by the gathering. The Board held there was no unlawful electioneering.28
The D.C. Circuit upheld the Board's decision.29 The D.C. Circuit stated that
[t]he Board generally considers the nature and extent of theelectioneering, whether it happened within a designated ‘noelectioneering' area, whether it was contrary to the instructions ofthe Board's election agent, whether a party to the electionobjected to it, and whether a party to the election engaged in it.30
The D.C. Circuit then applied the factors and found that the employer had failed to demonstrate that there was a no-electioneering area, that any instructions were issued by the Board agent, that any party had objected to the union rally, or that the union was responsible for directing or participating in any objectionable conduct.31
14. 230 N.L.R.B. 735, 740 (1977), enforced at 599 F.2d 1057 (9th Cir. 1979).
16. Id. at 741.
18. Sterling Faucet Co., 203 N.L.R.B. 1031 (1973).
19. Id. at 1037.
21. Id. at 1038.
23. Harold W. Moore, 173 N.L.R.B. 1258 (1968).
24. Id. at 1258.
26. Overnite Transportation Co. v. NLRB, 140 F.3d 259 (D.C. Cir. 1998).
27. Id. at 269.
29. Id. at 270.
I thought it might be useful to some to provide a series of excerpts from my article Questioning the D.C. Circuit; Harmonizing Board Precedent: Why Mere Presence of an Organizer Should Not Invalidate a Board Election. While the article does not contain the most current information on the topic, it might be a useful starting place for anyone researching the topic of basic Board election law or for anyone dealing with potential or actual organizer presence at an election.
This Article provides an overview of the Board's electioneering precedent, discusses the case of Nathan Katz, and then suggests the manner by which the Board can harmonize its precedents dealing with the presence of organizers in the election vicinity, as requested by the D.C. Circuit in the Nathan Katz decision.
A. The Board's Electioneering Rules
A few basic rules govern electioneering. Peerless Plywood Co.2 prohibits mandatory election speeches to massed assemblies of employees on company time within twenty-four hours of the election. Milchem, Inc.3 prohibits sustained conversation with prospective voters waiting to cast their ballots, even where the topic of conversation is unrelated to the voting.4 Ordinarily, however, electioneering will not fall within these rules, and the Board will consider a number of factors to determine whether electioneering interfered with the free choice of the voters. The Board considers whether the conduct occurred at or near the polling place, the extent and nature of the electioneering, whether it is conducted by a party to the election or employees, and whether it is within a designated no-electioneering area or contrary to the instructions of the Board agent.5
1. Nathan Katz Realty v. NLRB, 251 F.3d 981 (D.C. Cir. 2001).
2. Peerless Plywood Co., 107 N.L.R.B. 427 (1954). "[T]he combined circumstances of (1) the use of company time for preelection speeches and (2) the delivery of such speeches on the eve of the election tend to destroy freedom of choice and establish an atmosphere in which a free election cannot be held." Id. at 429-30.
3. Milchem, Inc., 170 N.L.R.B. 362 (1968).
4. Id. at 362 ("[T]he standard here applied insures that no party gains a last minute advantage over the other, and at the same time deprives neither party of any importantaccess to the ear of the voter."); see also Bio-Medical Applications of Puerto Rico, Inc., 269 N.L.R.B. 827, 829-30 (1984) (arguably extending the Milchem rule to prohibit sustained conversation with prospective voters in the entire no-electioneering zone when one is designated).
5. Boston Insulated Wire & Cable Co., 259 N.L.R.B. 1118, 1119 (1982).
As previously promised, here are some observations about drafting Questions Presented.
While there are several different formats traditionally used for Questions Presented, in my class, we practice drafting one that incorporates both the legal issue and key relevant facts. The goal is to write a Question Presented that comports with the theory of the case and suggests the desired answer. It is persuasive without being "argumentative." Rather than use adjectives and adverbs, the Question Presented persuades through the choice of words and the choice of facts to emphasize.
Many factors, which are sometimes countervailing, can lend toward making a Question Presented persuasive. Three interesting factors to consider are the length of the Question Presented, whether the Question Presented accurately represents the scope of the issues the court will review, and the framing of the Question Presented.
Generally a short question presented is easier for the reader to understand than a long one. Sometimes, however, it is necessary to write a longer than ideal Question Presented in order to frame a question affirmatively or incorporate significant facts.
Turning a Question Presented that suggests a "no" answer into one that suggests a "yes" answer can sometimes decisively change the persuasiveness of the Question Presented by casting it in a more affirmative light. Doing so may, however, lengthen the Question Presented or broaden the scope beyond the limited issues that the court will actually consider.
In recent discussions with my colleagues and students, I have had the chance to see a concrete example of how considering these three factors can aid in drafting an effective Question Presented. The brief the students are working on poses the following limited question:
"Whether the need to obtain clothing for Druce constituted an exigent circumstance under the Fourth Amendment to the United States Constitution."
Here is a Question Presented that mirrors the framing of the certified question.
Can the Government prove Fourth Amendment emergency circumstances to enter an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?
Here is one that frames the question affirmatively, rather than negatively. It is, however, broader in scope than the certified question.
Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to obtain shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain? (This question provided courtesy of Connie Barr.)
Here are two that frame the question affirmatively and attempt to limit the Question Presented to the scope of the certified question. They are rather lengthy.
Does the Fourth Amendment right to be free from unreasonable searches preclude the Government from asserting emergency circumstances to enter into an arrestee's home when the arrestee, who was standing compliantly outside the home, refused consent to enter for the purpose of obtaining clothing?
Is an individual's Fourth Amendment right "to be secure in [his] . . . house" breached by a police officer's warrantless entry into his home to correct perceived clothing exigencies by obtaining shoes, socks, and a shirt for him given that he expressly denied consent to enter, was arrested outside his home, and had knowledge of the surrounding terrain? (This question provided courtesy of Connie Barr.)
While ultimately each of these Questions Presented is probably effective, thinking about these factors can aid in considering the possibilities and drafting a Question Presented with which you are satisfied.
Last week my class discussed oral arguments. One student raised a question that many others doubtless have before their first oral argument. What do I do if I don't know the answer to a judge's question?
In response, we discussed tips for answering a judge's question. These tips are not only helpful for first-time advocates but also might be a nice refresher for those with more experience.
1. Listen closely to the judge's question. As many of use have found when engaging in public speaking for the first time, it is difficult to listen to and understand someone's question when you are nervous. Because of this, a new advocate should concentrate solely on listening to the judge's question and should not worry about a response until after the question is completed.
2. Pause and think after the judge has finished the question. After listening to the question, it is appropriate to take a few seconds to collect your thoughts and think about your response. The seconds may feel endless when you are "shaking in your boots." But to the judge and any other onlookers, a few seconds pause before you answer is expected and barely noticeable.
3. Answer the judge's question directly. For instance, if the question calls for a "yes" or "no" answer, start with a "yes" or a "no." After a direct response, explain the underlying reasons for the answer.
4. Concede when appropriate. If there is a bad fact, bad law, or other point you rightfully should concede, do so. Then explain why the concession does not harm your client's case. For a discussion of why recognizing the strengths of the opposing case and conceding when necessary enhances your persuasiveness, see Bryan Garner's interview of Judge Zagel. (That said, do not be pressured into conceding points that you do not rightfully concede.)
5. If you do not know the answer to the question, simply state that you do not know the answer. Then offer to provide an answer via supplementary brief within a short time frame. Do not make the mistake of claiming to know something you do not. For such an embarrassing encounter see this clip of Marcia Clark . Also, practice enough that there will only be one question, at most, to which you do not know the answer.
6. After answering the question, transition back to a point you wish to emphasize to the judges. This may sound easy but requires practice before the argument to do well. If you are interested in some tips for preparing for transitions, see Bryan Garner's interview of Justice Roberts in which his Honor discusses practicing the points you wish to make in your argument in different orders.
For further discussion, and additional tips, about answering judges' questions see Linda H. Edwards, Legal Writing: Process, Analysis and Organization 358-61 (4th ed. 2006). I would like to thank Jean Rosenbluth for introducing me to the clips of Judge Zagel and Marcia Clarke.