Virginia Journal of Social Policy and the Law
The use of anti-Jewish propaganda in labor representation elections undermines employee freedom and workplace democracy. This Judeopathic practice has proved to be a vexing problem for both the National Labor Relations Board (“the Board”) and the federal courts. The Board has been haphazard and lax in applying the doctrine of Sewell Manufacturing Co. in cases involving anti-Semitism, whereas the federal appellate courts have applied Sewell more consistently to purge elections of anti-Jewish misconduct. This divergence between the Board and reviewing courts may be the result of a pattern of nonacquiescence on the part of the Board. There are four fundamental flaws in the Board’s reasoning that may account for its failures. First, the Board has dogmatically adhered to the misconception that some unspecified level of anti-Semitism is tolerable so long as it is sufficiently casual or isolated. Second, it has applied an unattainable standard for invalidating elections based on third-party hate tactics. Third, it ignores its own culpability and enables anti-Semites by certifying the results of racism-ridden elections. Fourth, the Board's lack of vigilance raises concerns over its commitment to both ethnic tolerance and shop-floor democracy.
Where the employer or union is responsible for an ethnic slur, the solution is simple: it should suffer the automatic, per se invalidation of any election it wins. Such a flat, prophylactic rule would clarify the Sewell doctrine, reduce litigation, and send the most potent message that anti-Jewish appeals are intolerable. No fair system of representation can exist if the underlying process is corrupted by ethnic or religious hatred.
John W. Teeter, Jr. and Christopher Burnett, Representation Elections, Anti-Semitism and The National Labor Relations Board, 5 Va. J. Soc. Pol’y & L. 341 (1998).