Two NLRB Members Decline to Endorse Current Rule for Determining Whether an Employer Lawfully Withdrew Recognition from a Union

As background, between 1951 and 2001, the Board would find that an employer lawfully withdrew recognition from an incumbent union if the employer could prove that it had a reasonable, good-faith doubt about whether a majority of employees continued to support the union. Celanese Corp., 95 NLRB 664 (1951). In 2001, the Clinton Board reversed precedent and held that an employer may lawfully withdraw recognition from an incumbent union only if it bears the heavier burden of proving that the union in fact lost majority support. Levitz Furniture Co., 333 NLRB 717 (2001).

In Port Printing Ad & Specialties, 344 NLRB No. 34 (2005), the Bush Board applied Levitz Furniture and held that an employer violated Section 8(a)(5) by withdrawing recognition from an incumbent union because the employer failed to prove that the union in fact lost majority support. Nevertheless, Chairman Battista and Member Schaumber noted that “they did not participate in Levitz and express no view as to whether it was correctly decided.” Id., slip op. at 1 n.2.

As noted in previous posts, the Board traditionally does not reverse precedent unless at least three Members vote to do so.

NLRB Holds That Pro-Union Supervisor Engaged in Nonobjectionable Conduct When She Solicited Authorization Cards from Employees She Did Not Supervise

As background, in Harborside Healthcare, Inc., 343 NLRB No. 100 (2004), the Board reversed precedent and held that pro-union supervisors engage in objectionable conduct when they solicit authorization cards from employees. Id., slip op. at 6.

In Glen’s Market, 344 NLRB No. 25 (2005), a pro-union supervisor solicited two employees to sign authorization cards. She did not supervise these employees; they had a different supervisor. After the union won the election, the employer filed election objections, including an objection in which it argued that the pro-union supervisor interfered with employee free choice by soliciting authorization cards.

The Board unanimously overruled the employer’s objections. The Board reasoned that the pro-union supervisor did not interfere with employee free choice because she did not supervise the employees whom she solicited. The Board explained: “Because we find no evidence in the record that [the supervisors] directed their prounion activities toward any employee over whom they exercised their supervisory authority, we conclude that their conduct could not reasonably have coerced or interfered with employees’ free choice in the election.”

Thus, Glen’s Market dispels the concern of the Harborside dissent that the Board had “creat[ed] what seems to be a broad prohibition against card solicitation by any supervisor, from any employee.” Harborside, slip op. at 15.

In light of Glen’s Market, Harborside seems to have been a weird case to reverse precedent on solicitation of cards by supervisors: a majority of the Board found that the record failed to show that any supervisor had solicited cards from her own supervisees. In Harborside, Members Liebman and Walsh found that the supervisor solicited cards from employees whom she did not supervise (they also voted to find that card solicitation by pro-union supervisors is nonobjectionable even if there is a direct supervisor-supervisee relationship). Member Meisburg voted to find that “the totality” of the conduct by pro-union supervisors warranted setting aside the election, but he expressly found that the record failed to show that any supervisor had solicited cards from employees whom she supervised. Id., slip op. at 6 fn.15. Only Chairman Battista and Member Schaumber found that a supervisor had solicited cards from employees whom she supervised. Given that only two of the five Members in Harborside arguably found that a pro-union supervisor solicited cards from her own supervisees, the case seems like an odd vehicle to reverse precedent.

Regardless, Glen's Market is a good case for unions. Unions may use pro-union supervisors to solicit cards if they are careful; unions must ensure that pro-union supervisors solicit only people outside of their chain of command.

UPDATE: After the Board issued the above decision, the employer committed a "technical 8(a)(5) violation." Glen's Market, 344 NLRB No. 100 (2005) (holding that the employer violated Section 8(a)(5) by refusing to recognize and bargain with the union). The employer will now seek review of the Board's decision in a court of appeals.