Case Scenario The union lost a representation election by a vote of 16 to 5, with 7 challenged ballots. The union charged the company with unfair labor practices, and on the basis of the Gissel Bargaining Order, asked the NLRB to order the company to bargain with the union anyway. The NLRB found unfair labor practices and did so order. Although the company denied unfair labor practices, its appeal involved primarily the Gissel Bargaining Order. When an election is set aside because of unfair labor practices of the employer, the NLRB can order the company to bargain with the union if the union has obtained authorization cards from a majority of the employees in an appropriate unit. The company contended that the union did not have enough cards; the union contended that it did. There were four employees in dispute. The company contended that the unit consisted of 31 employees; the union, 29. The company also contended that 1 of the 16 authorization cards was invalid. 1. The union sought to exclude two members of the unitone who was on sick leave and one who performed clerical duties. It was the union's position that although a member on leave would normally be considered part of the unit, the company had instituted a new personnel policy automatically terminating anyone on leave for more than 21 days. The employee in question had been on sick leave for more than four months at the time of the unit count. The company pointed out that obviously the new personnel policy was not applied to this employee because he had worked for one day during his extended leave, and had been paid for it, and throughout his leave, he had enjoyed all the fringe benefits of an employee. As for the clerical worker, the union pointed out that clerical workers were excluded from the unit, and the employee was off the line doing clerical work 30 percent of the time. The company contended that her clerical time in the office was minimal and was performed between 8:00 a.m. and 8:45 a.m., and at lunchtime. Her other clerical duties were done in the line area and were associated with the production line. 2. The company challenged the authorization card of one employee. In a Gissel casebecause cards substitute for a secret ballot electionthe signatures on the card must be obtained only by proper means. The company contended, on the basis of the employee's testimony, that he was harassed for two or three days before signing the card, that he repeatedly stated that he did not want to sign the card, and that he was told that signing the card was just for an election. The union claimed that its admittedly repeated requests to the employee were not harassment but permissible pre-election campaigning and that, although he was told in one instance that the card was only for an election, at a general meeting he was told that the cards would be presented to the company for recognition which the company could accept or reject. Decision The court found that the two employees should have been included in the unit and that the employee's authorization card should have been excluded. The evidence presented by the company on the validity of the employee's sick leave was overwhelming, as was proof that the other employee was essentially a line employee with minimal clerical duties. The testimony of the employee regarding his authorization card was convincing and the union did not refute it sufficiently.

Questions 1. If you were deciding this case, would you include the two employees in the unit total? Explain your answer. 2. If you were deciding this case, would you have accepted the disputed authorization card? 3. In this instance, the union had 15 unchallenged authorization cards requesting an election but lost by obtaining only 5 unchallenged votes. Discuss some of the factors during an election campaign that could bring about this result.