Employer’s “Closely Identified” Observer Invalidates Election

January 13, 2011 by Beeson Tayer & Bodine

In a 2-1 decision, the Obama Board found that the employer, a school bus company, engaged in objectionable conduct in an election among its bus drivers by selecting a nonsupervisory trainer/substitute driver as its election observer. First Student, Inc., 355 NLRB No. 78 (2010). The Board affirmed prior decisions holding that employers are barred from selecting as their election observers not only supervisors, but those employees whom “could reasonably be viewed by employees as closely identified with management.” Here, the Board concluded that, based on her duties related to the employer’s driver training program – she interviews applicants for the employer’s CDL training program and conducts the training – other employees could reasonably view the trainer/substitute driver as closely identified with management. The Board set aside the election and scheduled a new election.

Management invariably chooses an employee who is pro-company as their election observer; these employees will sometimes have duties and responsibilities beyond those of the rank and file. No one likes to lose an NLRB election; but if you do, and you think the employer’s election observer might be “closely aligned with management,” make sure to file an objection within 7 days of the election, and contact our office for assistance in pursuing the objection.

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