Appeals by an employer to the racial prejudices of its employees may be an unfair labor practice in violation of section 8(a)(1)1 of the National Labor Relations Act (Act). This section makes it unlawful for an employer "to interfere with, restrain, or coerce" employees in the exercise of their rights, under section 7' of the Act, "to form, join, or assist labor organizations," or to refrain from doing so. Racial appeals by either an employer or a union may also be grounds for setting aside an election conducted by the National Labor Relations Board (Board) if, as determined according to Board standards spelled out in 1962, the appeals taint the "laboratory conditions" in which elections are to be conducted under section 96 of the Act. While section 8(c) of the Act, the "free speech" provision, offers some protection to an employer's non-coercive statements on racial issues, this section applies only in unfair labor practice cases arising under section 8. It does not prevent the Board from finding, in representation election cases arising under section 9, that an employer's statements, even though protected by section 8(c), interfered with "laboratory conditions," thus requiring the results of an election to be set aside. This article surveys the Board's treatment of appeals to racial prejudices as either unfair labor practices or as grounds for setting aside elections.
Campbell, John P.
"A Survey: NLRB Limits On Appeals to Racial Prejudices of Employees,"
Mercer Law Review: Vol. 32
, Article 7.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol32/iss2/7