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.

II. ANALYSIS

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).