A Chicago federal appeals panel has ordered the National Labor Relations Board to hold a hearing into allegations by Jam Productions that Theatrical Stage Employees Union Local 2 gave lucrative jobs to non-unionized Jam workers so they would vote to install the union local at Jam Productions venues.
The June 28 ruling was delivered by Circuit Judges Ilana Rovner and Michael Kanne, of the U.S. Court of Appeals for the Seventh Circuit. Serving as a visiting judge on the panel was U.S. District Judge Thomas Durkin, of U.S. District Court for the Northern District of Illinois. The decision favored Jam Productions in its dispute with the National Labor Relations Board.
Jam Productions produces concerts and shows in the Chicago area, using part-time and non-union stagehands for generally sporadic work. The question of whether the Theatrical Stage Employees Union Local 2 would represent Jam workers was put to a vote May 16, 2016, with the union winning with 22 votes in favor and 10 votes against. Jam contested several ballots on grounds, including whether the votes had been cast by ineligible workers.
Jam also filed an objection with the NLRB challenging the vote on the basis the union steered to 15 Jam workers higher paid jobs at union venues - which otherwise would have gone to Local 2 members - in the six weeks before balloting, to influence them into voting for the union.
The NLRB refused to order Local 2 to turn over records Jam said would help substantiate its allegation. The NLRB also denied Jam’s request for a hearing and ruled against the company, finding Jam failed to show Local 2 did anything wrong and it was too speculative to contend the jobs were of “tangible economic value” meant to sway the vote.
The NLRB then certified Local 2 as the bargaining unit for Jam workers, but Jam refused to recognize the union. The NLRB lodged an unfair labor practice complaint and Jam appealed to the Seventh Circuit, saying it deserved an NLRB hearing.
Judge Rovner decided Jam made enough of a case to warrant a hearing.
“The financial benefit of the higher-paying jobs immediately preceding the election could plausibly be seen as an economic inducement to secure votes in favor of Local No. 2. The NLRB has refused to certify elections where a union has offered benefits to employees of similar or lesser value than the premium-pay jobs allegedly offered here,” Rovner noted.
In addition, the National Labor Relations Act bars unions from engaging in “both crude and subtle forms of vote-buying,” such as “giving something of value to an employee in exchange for his vote as well as offering a benefit in a way that ‘tacitly obliges the employee’ to vote for the Union,” according to Rovner, who quoted the 1973 U.S. Supreme Court ruling in NLRB v. Savair Mfg.
Rovner pointed out Jam could have uncovered more evidence to back its claim through a hearing, but was wrongly denied one.
Jam Productions has been represented by Steven Gillman, of the Chicago firm of Holland & Knight.
The NLRB has been represented by its in-house attorney, Valerie Collins.