Reference no: EM132244530

A week before a certification election, a WalShop store manager (who resides in Walnut) walks by a Rancho Cucamonga church in order to observe a union organizing meeting she read about on a bulletin board in the employee cafeteria. According to her rough count, approximately a hundred of the 250 employees at the store were attending.   She looks for familiar faces from the sidewalk outside (and makes notes of what she observes) but does not attempt to make contact with anyone going inside the church. After several nervous employees called the manager’s presence out to the union supporter, Arturo Cruz, Cruz comes outside and orders the manager to leave. After a brief argument, the manager departs but not before wagging her finger at the church and shouting “Unions will be the death of us all!” The union loses the election by a close margin (120 in favor of certification, 130 against). Shortly thereafter, the union files an unfair labor charge against WalShop claiming that the supervisor’s presence and words constituted a “threat of reprisal” and thereby invalidated the election. In testimony before the Administrative Law Judge (ALJ), the supervisor states she was merely in the neighborhood and walked by out of curiosity. Management tells the ALJ that it neither ordered nor was aware of the supervisor’s action at the time it occurred. A regional vice president admitted, however, that he received a memo from the manager the day after the meeting describing what she had seen (including the names of some prominent employees in attendance) but claims to have taken no action based on the memo. Does the union need to prove that an unfair labor practice charge occurred in order to invalidate the election? Without regard to whether an unfair labor practice can be proven, should the election be ruled invalid (be sure to name the appropriate test the NLRB uses for judging elections and analyze the facts to determine whether that test can be proven)? Be sure to explain your answer.