Labor Law Blog

President-Elect Obama on EFCA

2009-01-16T23:17:00.002-05:00

President-Elect Obama recently discussed the Employee Free Choice Act with the Washington Post editorial board. The audio is here, and the relevant portion starts at the 56-minute mark.

Former Board Member Peter Kirsanow also spoke about the bill on January 17 with the host of America's Business, a production of the National Association of Manufacturers. A link to the audio is here, and Kirsanow's interview starts around 21:30.

Follow-Up on Proposed Reform

2009-01-12T22:34:00.006-05:00

Joe Brock, from Laboring Away at the Institute, posted a comment to my proposal for labor law reform. Below, I break his comment into segments and respond. His comments are in italics and my responses are in bold type.

I've been looking over your proposal with some interest, and I have some comments that i'd like to share. Your statistics are obviously well researched, and I think these statistics would be surprising to the general public who might not have the benefit of the numbers. For example: You correctly note that the median time between petition and election was 39 days in 2007. I think that would surprise many who have come to the conclusion in listening to the unions argument that it routinely took much longer. I think that 39 days from petition to election is about what it SHOULD take to make such a potentially career changing decision.

You focus on the half of elections held within 39 days and say the law does a good job. I focus on the half of elections that take more than 39 days (including 7% that take more than 56 days and the small minority that take many months) and say that the law can do a substantially better job. There is no need to wait months. We can do better.

7-21 days is clearly not enough time if you want your employees or potential members to do their own research based on the facts being offered in a campaign. Who you choose to represent you will impact your income and possibly your personal future more so than who you choose to be your President.

Twenty-one days is long enough for employees to perform independent research. Employees would be free to wait that long before casting their ballots. Employees who think they have enough information would be free to cast their ballots 7 days after petition (but no sooner). Employers are thus guaranteed 7 days to communicate their views. That is plenty of time. Moreover, nothing would prevent employers from communicating generally about unionization before any petition is filed. Employees appreciate as well anyone that their decision is important and that each side’s views should be taken with a grain of salt.

Holding an election without a decision on the apropriateness of the unit being clarified is a non-starter with me. As you correctly point out, these issues are rare, and the Board does a great job in getting the parties to reach agreement on this when it becomes an issue. I think that if there was going to be a "trial run" it would open up the potential for MORE questions of appropriateness, allowing the employer a free bite at the apple, or a peak under the covers, as it were. Win the "trial run" and drop the question. Lose the election and appeal forever. It would get abused as part of an election strategy.

What if the Board were to conduct the election, impound the ballots, fully resolve any dispute over unit appropriateness, and finally conduct the tally of ballots? That procedure would alleviate your concern about an increase in unit-appropriateness disputes because employers would have to litigate the issue before knowing the election result. That procedure would also prevent unit-appropriateness disputes from greatly delaying elections and thereby minimize the temporal opportunity for coercion by both sides.

I'm also not on board with Internet and telephone voting. little or no delay in the election process can be attributable to the physical process of setting up a time and place. 28 days doesnt normally become 40 because the Board agent has a scheduling conflict. Besides, i've been involved with many union elections. The process currently in place is damn near impossible to manipulate. You walk into a room with observers from both sides, you fill out a ballot in secret, put it in a box that never leaves anyones sight. The Board agent knows how many ballots went out, and they're printed on unusual paper. They count them in front of everyone. It's the fairest election process i've seen. In fact, it's the ONLY fair process as far as unions go. This is why they want to change it. Internet and telephone voting make me nervous, and I can see union organizers giving incorrect phone numbers on the cards, or manipulation of internet, etc.

The NMB has used telephone voting for 6 years and internet voting for over 1 year without any report of a security breach. Fortune 500 companies use the same technology for shareholder votes, and I’m not aware of any reported security breaches there. In short, I don’t think there’s a reasonable concern that unions will hack the system. (Also, keep in mind that the Board has for a very long time conducted mail-ballot elections. Do you think that internet and telephone voting is less secure than mail balloting?)

I recommended telephone and internet voting because, unlike manual balloting, it allows for a 2-week voting period that starts a week after the petition is filed. The Board can’t accomplish that with manual balloting.

Now, moving onto your idea about "limited" bargaining rights. Perhaps I misunderstand your proposal, but doesn't the concept of representing only those who supported the union fly in the face of a secret-ballot vote? Are you espousing that employees publicly declare their allegiance to either the union or the employer? Sounds like an EFCA end around and it has the same problems of any public vote, or card-check.

The law currently permits members-only bargaining, absent a 9(a) exclusive representative. I'm merely proposing requiring it in this limited context to eliminate the potential for years of post-election delay in the unionization process.

The important point is that the election has already been held, interim membership will not affect the election tally, and the incentive for coercion of employees has thereby been greatly reduced. The ULP process will be available for any coercion that did occur.

Again, the delay between vote and certification of the unit is NOT the problem that the unions are making it to be, as your statistics correctly point out. Most elections are certified in 10 days and bargaining can then begin.

Most election results are certified shortly after the election. Interim, members-only bargaining won’t affect employers or unions in those cases. In the minority of cases where a long delay occurs between election and certification, interim, members-only bargaining will promote collective bargaining, one of the Act’s enumerated purposes.

The REAL problem unions are faced with in the collective bargaining process is that the union is coming to a negotiation with nothing to offer an employer. If you went into negotiations with a car dealer with NO money, and NO credit, you'd get NO car. The union brings no customers, and no capital for an employer. Why would they agree to any improvements if they didn't see a business benefit to it?

Unions offer employees (their consumers) an opportunity to require their employer to sit at the table and listen to their concerns. Some employees consider this a valuable commodity. Other employees don’t. Employees, speaking through their representative, sometimes have some good input for employers. Employers sometimes improve working conditions based on that input. Sometimes they improve working conditions based on economic pressure exerted by their unionized employees.

I could go on, but you probably stopped reading a while ago. I certainly commend the thinking outside the box for your ideas, even though I couldn't quite agree with them.

Thanks for your comments.

A Proposal for Telephone & Internet Voting, Speedy Elections, and Interim, Members-Only Bargaining

2008-09-14T23:48:00.009-04:00

Delay is a significant problem under the NLRA. The Board took more than 100 days to resolve 21% of representation cases in the fourth quarter of FY 2007, and initial bargaining can be further delayed by an appeal to a circuit court. NLRB Performance & Accountability Report FY 2007 at 39-40.

At least two types of delay can occur during the representation process, thereby postponing initial bargaining: (1) the delay between the date an election petition is filed and the date the NLRB conducts the election; and (2) the delay between the date of election and the date of a final determination that the employer is legally obligated to bargain with an elected union. The first type of delay occurs in all representation cases. The second type of delay occurs in a small minority of cases. However, that delay can be extremely long, and it severely frustrates employees’ collective-bargaining rights. Both types of delay are largely a consequence of current law, not the fault of Board personnel.

To speed up the representation process, I propose that the Board start conducting elections by telephone and the internet, as does the National Mediation Board. Second, I propose holding elections before resolving disputes over unit appropriateness. Finally, I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of employees voted in the union’s favor. Below is an elaboration of the problem and my proposals. I’m looking forward to anyone’s comments or counterproposals.

Delay In Holding Elections
In the vast majority of cases, at least 28 days elapse between RC petition and election. The median was 39 days in FY 2007. Memo GC 08-01, at 2. In seven percent of cases, it took longer than 56 days. Id. In a very few cases, it can take quite a while. See, e.g., TransCare Paratransit, 29-RC-11482 (2008) (8 months); Marymount Manhattan College, 02-RC-23151 (2008) (17 months).

Long delays between petition and election are sometimes attributable to a dispute over the appropriateness of the petitioned-for unit. Parties were unable to reach an election agreement in 8.8% of RC cases in 2007 and 11.9% of RC cases in 2006. Memo GC 08-01, at 6. The Board’s current practice is to resolve a dispute over unit appropriateness before holding an election. See Sections 101.20 and 101.21 of the Board's Rules and Regulations. Understandably, it takes the Board some time to resolve the factual and legal issues presented. The election is held afterward.

Delay between petition and election creates an opportunity for parties to coerce employees before they have recorded their sentiment. Even absent coercion, long delay tends to frustrate an organizing movement as employees’ interest in unionization might naturally wane. Thus, to promote collective bargaining and free choice, employee sentiment should be recorded as quickly as possible after the filing of a petition (while ensuring that all parties have notice and an opportunity to discuss unionization before a vote is taken).

Facilitating Speedy Elections
To facilitate speedy elections, I first recommend that the Board adopt the National Mediation Board’s telephone and internet voting procedures. See NMB Representation Manual, Section 13; Internet Voting Comment Period, 34 NMB 200 (2007); Introduction of Internet Voting/Mock Election, 34 NMB 71 (2007); Telephone Electronic Voting, 29 NMB 482 (2002). The NMB has conducted elections by telephone since 2002 and by the internet since October 2007. The NMB assigns each voter two codes to be used in conjunction to keep voting anonymous and secure. Thus far, the NMB’s technology has maintained ballot secrecy.

Using telephone and internet voting, the Board could feasibly hold elections over a period between 7 and 21 days after the filing of the RC petition. Upon filing, the Board could quickly notify the employer, require the employer to immediately post an election notice, obtain an Excelsior list, and send voting instructions to eligible employees. Section 9(c) (1) requires the Board to hold a hearing before conducting an election to decide whether a question of representation affecting commerce exists. A very limited hearing could be held on the sixth day after a petition. The sole issue would be whether the employer affects commerce, a fact that is very frequently the subject of a stipulation. (If Section 9 requires a more substantial hearing -- which is not evident from its text -- I propose a statutory amendment that would permit my proposed procedure.) If 7 days is impracticable, the voting period could be 14 to 21 days.

My second proposal is to change current practice and start holding elections before resolving a dispute over the appropriateness of the petitioned-for unit. This change would enable the Board to hold nearly all elections within 7 (or 14) to 21 days after a petition is filed.

The general rule of “elections first” would have a limited exception. An election should not be held in a clearly inappropriate unit. Regional Directors would have unreviewable discretion to resolve unit appropriateness before holding an election where they find that the petitioned-for unit is clearly inappropriate (e.g., a petition for a unit of managers, or of employees of multiple employers, or employees of an RLA carrier).

A critic might argue that my proposal will result in some wasteful elections. In some cases, the Board will ultimately decide that a petitioned-for unit is not appropriate and therefore it will dismiss the petition or direct an election in a different, appropriate unit. I would respond that current law entails a similar waste. Conducting a hearing on unit appropriateness before an election is a waste when the union ultimately loses the election.

Delay Between Election and Final Determination of Duty to Bargain
As discussed above, the second type of delay is the delay between the election and a final legal determination that a union is the exclusive collective bargaining representative of an appropriate unit of employees (“post-election delay”). Post-election delay can be extremely long. In the meantime, employees don’t get the benefit of collective bargaining.

Post-election delay usually occurs because an employer has filed determinative challenges and/or election objections. Before certifying a union, the Board must resolve challenges and objections, and that process takes time. In some cases, it can take quite a while. Bloomfield Healthcare Center, 352 NLRB No. 39 (2008) (22 months between election and Board certification); Lily Transportation Corp., 342 NLRB No. 121 (2008) (8 months); Reliable Trucking, Inc., 349 NLRB No. 79 (2007) (20 months).

Even after the Board issues a certification of representative, some employers refuse to bargain. It takes time for the GC to file a motion for summary judgment and for the Board to issue a bargaining order. Casino Aztar, 352 NLRB No. 41 (2008) (4 months between certification and Board’s bargaining order); Carroll College, Inc., 350 NLRB No. 50 (2007) (22 months).

Even after the Board issues its bargaining order, employers can and do appeal the Board’s decision to a court of appeals. Again more time elapses. U-Haul Co. of Nevada, Inc. v. NLRB, 490 F.3d 957 (D.C. Cir. 2007) (19 months between Board’s bargaining order and court’s enforcement order); Sprain Brook Manor Nursing Home, LLC v. NLRB, 255 Fed. Appx. 529 (D.C. Cir. 2007) (14 months). In U-Haul and Sprain Brook, it took 4 years and 2 years, respectively, between the filing of the petition and the court order to bargain.

Only a minority of cases involve such lengthy post-election delay. By my calculation, employers filed determinative challenges and/or objections in approximately 7.6% of cases in which the tally favored a union in 2006, and approximately 6.4%, 7.3%, and 7.7% of such cases in 2005, 2004, and 2003, respectively. See, e.g., 2006 Annual Report at Tables 11B, 11C, and 13.

Employers withdrew their challenges or objections in a minority of those cases. Most cases required a hearing and a decision by an RD. As stated above, some cases were appealed to the Board and some further appealed to a court. While this entire group of cases is a relatively small percentage of total cases, the lengthy delay involved is a significant problem under the Act. Employees are deprived of their freely chosen bargaining representative for a long time. This is true regardless whether the employer has appealed based on a good-faith belief in the merit of its arguments or whether it has appealed solely or primarily to delay bargaining.

The wait is particularly troubling because, in 2006, the Board overruled employers' elections objections in 86.8% of the RC cases in which it ruled on them. 2006 Annual Report Table 11D. That percentage was 92.5% in 2005, 91.8% in 2004, and 91.4% in 2003. Thus, in most cases, the long wait results in a union certification. (I found no statistics regarding how often the Board certifies a union after resolving an employer's determinative challenges. I speculate that a union is certified in well over half of those cases).

Proposal to Provide Immediate, Limited Bargaining Rights
To speed up initial bargaining. I propose a statutory amendment that would impose a limited duty to bargain immediately upon a tally revealing that a majority of unchallenged voters cast their ballots in favor of union representation, provided that the union has not challenged a determinative number of ballots. Tallies would occur 22 days after the filing of the RC petition.

Upon such a tally, an employer would have to immediately bargain with the union on a members-only basis until the Board resolves the employer’s determinative challenges, election objections, and/or any dispute over the appropriateness of the unit. While waiting for a final legal determination, employers and unions would be required to sit at the table and bargain with open minds about union members' terms and conditions. When a final legal determination ultimately issues, the parties will have a head start on bargaining.

(A word about why I propose members-only bargaining during this interim period: while I support the Act's principle of majority rule, I think it would be unwise to permit a union to represent non-supporters until a final determination is made that a majority of employees have freely elected the union in an appropriate unit. Under my proposal, employers and non-member employees would be able to deal directly with each other.)

An exception to the limited bargaining duty would exist. No limited bargaining duty would arise, even if a tally favors the union, when the employer disputes unit appropriateness on grounds that the unit includes statutory supervisors, guards and non-guards, employees of multiple employers, etc. Thus, while an election can be held in a unit of putative supervisors, no duty to bargain will arise in such a unit unless and until the Board certifies the union.

Under my proposal, if and when the Board certifies the union, the employer must bargain with it as the exclusive representative of all unit employees. On the other hand, if and when the Board concludes that the unit is inappropriate, sustains election objections, and/or resolves determinative challenged ballots against the union, the limited duty to bargain would be extinguished.

The limited duty to bargain on a members-only basis would have limited benefit to employees if the law were to forbid employers and unions from reaching interim agreements. Thus, my proposal calls for the law to clearly permit parties to execute members-only CBA’s and to apply them to members only. The amended statute would also permit (but not require) an employer to offer non-members the same terms and conditions as exist under the interim CBA.

Skeptical employers might complain that unions will be able to secure limited bargaining rights by committing objectionable conduct. Skeptical unions might complain that employers will retain up to 21 days to coerce employees. To reduce coercion, the proposed statutory amendment would impose a fine on parties (employers and unions alike) found to have coerced employees during an organizing drive. The fines must have sufficient deterrent effect. Likewise, the amendment would impose a fine to deter parties from shirking their interim duty to bargain.

Skeptics of my proposal might also argue that it is unwise to require an employer to bargain with a putative union victor when, in some cases, the employer will ultimately prevail on its objections, challenges, or unit-appropriateness arguments. But, keep in mind that the Board overrules employers' objections in about 90% of RC cases. On balance, I think that the law would promote collective bargaining more effectively if it imposed a limited, temporary duty to bargain than to require employees to wait months or years after a valid election for initial bargaining to start.

I realize that interim, members-only bargaining will present issues. How, if at all, should the Board apply the unilateral change doctrine? What effect, if any, will an interim agreement have after certification? Professor Charles Morris, who advocates for a general duty to bargain on a members-only basis, has argued that the Board will be able to handle such issues effectively. Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace 236-37 (2005). I agree and will leave my thoughts on such issues for another day.

To conclude, I think my proposal has a number of advantages. It speeds up elections and initial bargaining. It retains the secret-ballot election, which ensures, to the greatest extent possible, that employees will record their choice free of coercion. Moreover, it ensures that all unit employees and the employer will have at least 7 days to speak non-coercively about the relative advantages or disadvantages of unionizing before employees cast their ballots. Finally, while I like the merits of my proposal, it also might provide some common political ground. I’m sure that it can be improved. I’m hoping to get some input.

Orrin Hatch on EFCA

2008-07-23T08:50:00.003-04:00

Here is a some video from CNBC's Squawk Box of Senator Orrin Hatch criticizing the Employee Free Choice Act.

Agreements Not To Organize

2008-05-12T00:47:00.000-04:00

As discussed at Workplace Prof Blog and Debris, the Wall Street Journal has reported on an agreement between SEIU and UNITE HERE on the one hand and two employers on the other that the unions won't seek to represent certain groups of those employers' employees. SEIU and UNITE HERE currently represent some of those employers' other employees.

The Board has given effect to an agreement not to organize a group of workers if "the promise be express, for a reasonable period of time and the result of bargaining between equals." Lexington House, 328 NLRB 894, 897 (1999) (citing Briggs Indiana Corp., 63 NLRB 1270 (1945). In Lexington House, the Board refused to process an RC petition where the petitioning union had promised the employer that it would not seek to represent the petitioned-for unit for 12 months. The Board found that the agreement's restriction was not contrary to the Act's policies.

It would be interesting to know what SEIU and UNITE HERE received in return for their promise. Increased wages for the currently represented groups? Better health care? Increased access to still other groups of unrepresented employees? It would also be interesting to know whether the unions had had any interest in organizing or plans to organize the off-limits group. I don't subscribe to the WSL, so can't access the full article.

More from Estlund and Hurtgen on the Employee Free Choice Act

2007-03-30T06:27:00.002-04:00

After reading the written testimony to the Senate HELP Committee, I sent five questions to Cynthia Estlund and one question to Peter Hurtgen. They kindly agreed to let me post their answers.

Questions to Cynthia Estlund
1) How exactly would the EFCA's card-check provisions reduce employer coercion?

A: Card check limits the employer’s opportunity to wear down the employees over weeks or months, and it would limit the opportunity to extend that period through procedural maneuvers. (Union avoidance consultants, which most employers hire when faced with a union organizing drive, are quite candid that they often need several weeks or more to erode the union’s majority.) Because majority sign-up is a rolling process, the impact of the employer’s campaign may also be diffused by the fact that some of the employees the employer is targeting have already signed up. The Eaton & Kreisky study (cited in my testimony) shows that, one way or another, employees report much less pressure from any source in card check than in election campaigns (and much less pressure from the union than from the employer in either type of campaign).

2) Are you concerned that, under the EFCA, a law-abiding employer can lose the opportunity to engage in non-coercive speech on the disadvantages of unionization?

A: There generally is time for the employer to convey information. First of all, employers are entitled to (and some do) tell employees their views on unionization in general from the first day on the job. As for information about the particular union, except for some very small units, the card check campaign doesn’t stay secret from the employer.
In any event, employees don’t obviously have any less information about the union before signing a card than they generally have about the employer before taking a job. You can only learn so much before starting the job. So, too, the best way to learn about what it’s like to have a union is having a union. If you don’t like what you learn over time, and if a majority of your co-workers share your views, you can simply tell the employer that, and the employer can or even must withdraw recognition. When employees are dissatisfied with their employer, by contrast, their only real option is to quit (which of course is no less an option when employees are dissatisfied with the union).
Finally, let’s keep in mind that employees who actually have union representation overwhelmingly say they prefer to keep it – 87-90 percent. Opponents of card check often seem to assume that it is some huge and fateful step for employees to choose union representation. But we make a lot of choices in life that are harder to undo, and that have at least as important consequences, with a lot less information and certainly without having to undergo a highly adversarial campaign over its merits.

3) Would you support legislation that directly prohibits employers from engaging in non-coercive speech on the disadvantages of unionization?

A: Apart from constitutional and other problems with such a prohibition, I have doubts about its enforceability, and the impact on already horrendous delays at the NLRB. (If I were able to snap my fingers and enact labor law reform, I would be more inclined to limit employer’s ability to compel employees to submit to captive audience meetings and/or their ability to exclude union organizers from the workplace than to regulate what they can say.) EFCA takes a different, less interventionist approach that allows organizers and employees to choose a different campaign structure instead of further restricting employer conduct.

4) You declined to express an opinion on Section 3 of the EFCA, which addresses mandatory interest arbitration. Do you support Section 3?

A: I do. Interest arbitration is not an ideal end to collective bargaining. But it’s necessary response to a serious problem, and it’s a better spur to good faith bargaining than what current law provides. (And that is mostly how it works in Canada, where the very large majority of cases that could be subject to interest arbitration end in voluntary agreements.)

The situation that first contract arbitration is meant to address is familiar and pretty disastrous: Employers, after failing in their union avoidance effort, can continue the fight, stall and delay, aiming not toward an agreement but toward impasse, knowing that all the Board will do is order more bargaining, and all the employees can do is strike, which will expose them to permanent replacement and eventually decertification. (In this they are following the fairly standard advice of those near-ubiquitous union avoidance consultants.) Many employees who manage to surmount the employer’s first anti-union effort lose out in the second phase. They end up with no contract and no tangible gains from their hard-fought campaign; after a year or two or three, demoralization and turnover often doom the union’s majority. It’s a very sad situation that calls for a significant change in the law.

5) Do you think that the EFCA's new remedies are sufficient to adequately deter employer coercion? Or, do you think that even greater remedies are required?

A: First, a lot of conduct that is legal is very coercive, especially over time and in the very intense form that it is often engaged in, given the employer’s overwhelming power over employees and the workplace. But even looking just at illegal forms of employer coercion, the new remedies are probably not a sufficient deterrent. The penalties are likely to be used sparingly. Treble backpay will mainly affect one especially coercive tactic – discriminatory discharges – and would still make the average backpay award under $12,000. That is surely not enough to deter the determined employer. Injunctive relief, and esp. preliminary reinstatement of fired activists, is important and potentially very helpful in undoing some of the harm to the organizing campaign.

The problem is that many employers seem to believe (wrongly, I think) that the fate of their business depends on keeping the union out (and their highly-paid consultants fan the flames of anti-union sentiment). It’s hard to know what it would take to adequately deter employers in that situation from taking advantage of their managerial prerogatives, and their ability to predict terrible consequences for the workplace as a whole (which they will be around to help bring about if they “lose”), to induce employees to vote “no.” That’s the thinking behind EFCA’s creation of the alternative structure of majority sign-up or card check. It’s not a perfect solution, but I doubt there is one.

The challenge is to change the labor relations climate – social norms, in part – so that more employers (like Cingular, Costco, Kaiser-Permanente) decide simply to deal with the fact of collective bargaining, and to normalize unionization again, so that it becomes one way of moving forward instead of a tooth and nail fight.

Question to Peter Hurtgen
Q: You declined to express an opinion on Section 4 of the EFCA, which provides for new remedies. Do you support or oppose Section 4? Do you think that the NLRA’s current remedies are adequate to effectively deter employer coercion?

A: I oppose section 4 and I believe present Board remedies are adequate or could be without an amendment to the Act.

Senate Hearing on Employee Free Choice Act

2007-03-26T09:34:00.000-04:00

The Senate Committee on Health, Education, Labor, and Pensions is holding a hearing on the Employee Free Choice Act on Tuesday, March 27 at 9:30 a.m.

The witnesses will be:
Errol Hohrein, an employee who participated in an organizing drive
Cynthia Estlund, Professor, NYU Law School
Lawrence Mishel, President, Economic Policy Institute
Peter Hurtgen, Morgan, Lewis & Bockius LLP, former Chairman and Member of the NLRB, and former Director of the FMCS

The Employee Free Choice Act

2007-03-07T01:00:00.000-05:00

On March 1, the House passed the Employee Free Choice Act (EFCA), H.R. 800, 110th Cong. (2007). That bill is highly unlikely to become law anytime soon. Senate Republicans will surely filibuster the bill, and Vice President Cheney has stated that President Bush will veto the bill if it reaches his desk. The bill probably will not garner enough support to overcome a Republican filibuster, much less a Presidential veto. Nevertheless, the bill merits discussion.

If enacted, the EFCA would: (1) obligate the NLRB to certify a union based on a card check; (2) permit a newly-certified union to subject an employer to mandatory interest arbitration if the parties’ negotiations fail to produce a first contact; and (3) impose harsher penalties on employers that violate the NLRA.

Proponents of the EFCA argue that current law does not adequately protect employees against employer coercion and that employees therefore cannot truly exercise free choice when deciding whether to select union representation. Under current law, an employer may lawfully refuse to recognize a union until the union wins an NLRB secret-ballot election. To obtain an election, a union must garner support from 30% of employees and file an election petition. The Board immediately notifies the employer about the petition and schedules an election. The median interval between petition and election is 39 days. During that time (i.e., the campaign period), an employer has an opportunity to unlawfully coerce employees by, for example, discharging union supporters, soliciting grievances, promising benefits, and threatening plant closure. The campaign period also creates an opportunity for employers to hold repeated non-coercive and non-objectionable captive-audience speeches and one-on-one discussions in which they urge employees to vote against union representation. Proponents argue that such speech (which I will call “unbalanced speech”) interferes with employee free choice, even though it is non-coercive and non-objectionable, because employees do not hear from unions to the same extent.

EFCA supporters seek to eliminate or reduce unlawful coercion, objectionable conduct, and unbalanced speech through, among other means, card-check certification. Under the EFCA, the Board would certify a union after receiving a petition along with signed authorization cards from a majority of employees. There would be no election, and hence no formal campaign period. If a union is able to quietly gather cards from a majority of employees without the employer’s knowledge, the employer will lose its opportunity to counter the organizing drive with coercion and unbalanced speech. Even if an employer informally learns about an organizing drive, it might have fewer days to respond to the union’s campaign than the approximately 39 days it has under current law. For these reasons, proponents argue that card-check certification will help employees exercise truly free choice.

Opponents of the EFCA counter that the secret-ballot election is the only method that ensures free choice. Behind the voting booth’s curtain, an employee can privately decide whether to vote for or against representation without either party knowing how she voted. If the EFCA is enacted, non-employee union organizers and pro-union employees would unlawfully coerce employees into signing cards. At best, some employees would sign a card after succumbing to lawful peer pressure in order to please organizers and pro-union colleagues. Some EFCA opponents assert that most employers do not coerce employees during union campaigns and argue that card-check certification is not the way to handle the bad apples.

Would card-check certification reduce coercion, objectionable conduct, and unbalanced speech by eliminating the formal campaign period? Somewhat, in my opinion. In some cases, unions will quietly gather cards, the employer will not learn of the organizing campaign until the union is certified, and the employer will have lost its opportunity to counter the campaign. That said, I suspect that most employers learn about a union campaign not from the NLRB, but by observing open activity or from an employee who volunteers the information. If that is true, most employers will still have an opportunity to coerce. Will an anti-union employer refrain from coercing merely because it learned about an organizing campaign from these other sources rather than from the NLRB. I think not. Additionally, under card-check, some employers who fear the possibility that an undetected campaign is underway might start constantly coercing employees year-round.

What are the negative effects, if any, of card-check certification? First, without the formal campaign period, employers may lose the opportunity not only to coerce, but also to share the disadvantages of unionization in speeches that are not coercive, objectionable, or unbalanced. I believe that employers have a legitimate interest in speaking to employees about unionization given the restrictions and costs that the NLRA imposes on employers who have a unionized workforce. I also believe that employees sometimes benefit from listening to non-coercive, non-objectionable employer speech on the merits of unionization. Restricting that legitimate employer speech is unwise. Second, card-check certification may introduce an irrelevant factor into the calculus of deciding whether to select union representation. Under card-check certification, employees necessarily reveal whether they support or oppose the union. Some employees who would have voted against union representation free of coercion, objectionable conduct, and unbalanced speech in a secret-ballot election will sign an authorization card after succumbing to non-coercive, non-objectionable peer pressure from pro-union coworkers and non-employee organizers. I suspect that this number will be relatively small, but it may be outcome determinative in some cases. All else being equal (which it is not), the secret-ballot election has a distinct advantage over card-check recognition by ensuring that employers will have an opportunity to engage in legitimate speech and by eliminating the chance that employees select union representation based on a desire to please coworkers (or to avoid irritating them) and not based on its relative merits.

Given card-check certification’s limited effectiveness and negative consequences, is there a better way to reduce employer coercion? I suggest enacting even harsher penalties for NLRA violators. Under current law, it is often economically advantageous for employers to coerce employees. Unionization imposes significant costs on employers. Unionized employers must pay their negotiators, incur financial losses associated with refraining from making unilateral changes, and likely pay higher wages and benefits (i.e., the union premium). Coercing pro-union employees has a big benefit: it may avoid these costs by preventing unionization.

On the other hand, what are the costs associated with coercing employees? Often very little. Under current law, when the Board finds an employer guilty of many types of coercion (e.g., threatening plant closure or promising benefits), it will merely order the employer to cease and desist and schedule another election. In other words, such coercion costs the employer nothing, and it may save it many thousands of dollars. And what if the Board finds an employer guilty of discharging or suspending a union adherent? Under current law, an employer must make a discriminatee whole with backpay (lost wages minus interim earnings). In 2003, the average backpay award was $3,800. You can see that employers interested in the bottom line have a great incentive to coerce and slight disincentive to be found guilty of coercion.

The EFCA provides for mandatory triple backpay, discretionary civil fines up to $20,000 per willful or repeated violation, and mandatory injunctive relief when the Board has reasonable cause to believe that an employer has violated the Act during an organizing drive. If Congress seeks to eradicate employer coercion, it should consider enacting even harsher penalties. Given the economic benefit of remaining non-union, I doubt that the EFCA’s remedies are sufficient to effectively discourage employer coercion. Congress should consider eliminating the set-off for interim earnings, increasing the backpay factor to 5 or 10, and/or increasing the limit on civil fines to $100,000. Such remedies would likely serve as an effective economic disincentive, much like the one that exists under Title VII. And we all know that employers think twice before exposing themselves to liability under that statute.

To address the separate problem of unbalanced speech, Congress should consider expanding unions’ opportunities for communication rather than reducing employers’ opportunities. Congress could help level the playing field by entitling unions to access employers’ non-work areas to communicate with employees on non-working time about the merits of unionization. A similar access provision appeared in the Labor Law Reform Act of 1977, which was defeated by a Republican filibuster.

In short, I agree that the current legal regime fails to adequately protect employees against employer coercion. Imposing harsher penalties will go a long way toward eliminating that coercion. In contrast, card-check certification would likely have a limited impact on employer coercion. Moreover, it poses significant disadvantages when compared to the secret-ballot election.

More to come on mandatory interest arbitration and reducing delay in the certification process.

Former NLRB Chairman Edward B. Miller Passes Away

2006-11-28T09:25:00.000-05:00

Edward B. Miller died on November 10, at the age of 84, after a long struggle with Alzheimer's disease. Miller, a Nixon appointee, served as NLRB Chairman from June 1970 to December 1974.

I had the pleasure of observing Mr. Miller argue an NLRB case to a court of appeals back in 2000. He was quite impressive.

Mr. Miller's jurisprudence lives on. Recently, a Board majority, citing one of his dissents, overruled precedent and held that the Board will no longer presume that an employer's threat of plant closure was widely disseminated to unit employees. Crown Bolt, Inc., 343 NLRB No. 86 (2004) (citing General Stencils, Inc., 195 NLRB 1109 (1972) (Chairman Miller, dissenting)).

This obituary appears in the Chicago Tribune. A tribute to him, authored by former Chairman John Truesdale, appears on the website of the ABA's Section of Labor & Employment Law.

New and Improved NLRB Website

2006-11-21T09:45:00.000-05:00

The NLRB has updated its website. The website allows anyone, after registering, to access an electronic docket of any case pending before the Board. For example, you can view the electronic docket for Midwest Generation, 13-CA-39643, by clicking here and inserting "Midwest Generation" in the "Case Name" box. I discussed the Board's decision in Midwest Generation in this post. In that case, the Board held that an employer did not violate the Act when it locked out full-term strikers while allowing non-strikers and crossovers to continue working. The Seventh Circuit refused to enforce that decision and remanded the case to the Board with an order to find that the partial lockout was unlawful. The electronic docket is interesting in that it shows that the Board initially authorized the General Counsel to ask the Solicitor General to file a cert petition. Evidently, that didn't work out. The Board never filed a cert petition, and it actually opposed the employer's cert petition. The Supreme Court ultimately declined to take the case.

Pro-Union Labor-Law Reform Coming in China?

2006-10-13T09:55:00.000-04:00

The New York Times has a very interesting article on proposed labor-law reforms in China. David Barboza, China Drafts Law to Boost Unions and End Labor Abuse, N.Y. Times (Oct. 13, 2004).

NPR on Oakwood

2006-10-12T16:53:00.000-04:00

Below are some links to NPR coverage of the Board's Oakwood decision. Click the hypertext link and then the "Listen" button.

Labor Board Decision May Slash Union Membership, Morning Edition (Oct. 4, 2004)

Supervisory Ruling on Nurses, Union, All Things Considered (Oct. 4, 2004)

Labor Board to Answer "Who is a Supervisor?", Morning Edition (Oct. 3, 2006) (broadcast before NLRB issued Oakwood)

How Will Employers Respond to Oakwood?

2006-10-11T17:09:00.000-04:00

A colleague recently speculated that some employers will respond to Oakwood by giving their employees the authority to “assign” or “responsibly direct” other employees in order to render them statutory supervisors. In the case of rotating charge nurses, he predicted that some employers with the same motive will increase the regularity and substantiality of the time the nurses spend as charge nurses.

Statutory supervisors have no bargaining rights, and employers may lawfully discharge them for supporting a union. By increasing their employees’ authority and thereby rendering them statutory supervisors, an employer could sidestep the Act; or so the argument goes.

I think that an employer risks being held to have violated Sections 8(a)(3) and (1) if it increases its employees’ authority out of a desire to avoid a bargaining obligation. Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 302 (D.C. Cir. 1997) (“Both the Board and the courts have long held that an employer who promotes employees to supervisory positions to strip them of their right to self-organization because of a union campaign violates [Sections 8(a)(3) and (1)].”); Comcast Cablevision of Philadelphia, L.P., 313 NLRB 220, (1993) (holding that employer violated Section 8(a)(1) by promoting a union supporter to a position outside the unit to dilute the union’s support); American Tissue Corp., 336 NLRB 435, 445 (2001) (holding that employer violated Section 8(a) (3) and (1) by changing the job duties of an employee because of his union support); Regency Manor Nursing Home, 275 NLRB 261 (1985) (holding that employer violated Section 8(a)(1) by coercing employees into accepting supervisory positions in a scheme to undermine union support).

Of course, it may be difficult for the NLRB’s General Counsel to prove that an employer acted with an anti-union motive. But the proof problem is not insurmountable given the GC’s authority to subpoena documents and witnesses.

John Raudabaugh, a Former Member of the NLRB, Comments on Oakwood

2006-10-06T17:21:00.000-04:00

Over at the HR Policy Association's NLRB Watch webpage, John N. Raudabaugh summarizes the Board's Oakwood decision and makes the following comment:

Despite organized labor’s extreme rhetoric calling the Oakwood Healthcare decision “shameless”, “cheap”, a “semantic trick”, and redefining NLRB to “National League of Republican Businessmen”, few individuals will be “deprived” of their rights. First, unlike healthcare, most industry sectors do not employ significant numbers of professionally trained, scientific, or advanced degreed individuals who, additionally, might also qualify for the “supervisory” exclusion. Second, unless unions actually engage in organizing, any mass “deprivation of rights” is theoretical. Targeting the NLRB when it was responding to two rebukes from the Supreme Court to “get it right” is wrong-headed. It is the 1947 amendments to the 1935 Act that is the basis for the NLRB’s ruling on who is or who is not a “supervisor.” Of course, therein lies organized labor’s objective – political rescue. This issue surely will be at the top of their legislative agenda in the new Congress.

Raudabaugh, a Republican, served as a Member of the NLRB from 1990 to 1993.

NLRB Issues Long-Awaited Decision Interpreting Section 2(11)

2006-10-03T13:49:00.000-04:00

The Board issued a decision "refining" the analysis it employs to determine whether workers are "supervisors" excluded from the NLRA's protections. Based on a quick scan of the decision, it appears that the Board applied its refined standard to find that twelve permanent charge nurses were statutory supervisors but that other nurses, who served as charge nurses on a rotating basis, were not statutory supervisors. Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006) (Battista, Schaumber, and Kirsanow in majority; Liebman and Walsh dissenting in part).

From the majority opinion:

In interpreting the statutory terms “assign,” “responsibly to direct,” and “independent judgment” as set forth in this decision, we have endeavored to provide clear and broadly applicable guidance for the Board’s regulated community. Our dissenting colleagues predict that our definitions will “create a new class of workers” who are excluded from the Act but do not exercise “genuine prerogatives of management.” We anticipate no such sea change in the law, and will continue to assess each case on its individual merits. In deciding this case, moreover, we intentionally eschewed a results-oriented approach; rather, we analyzed the terms of the Act and derived definitions that, in our view, best reflect the meanings intended by Congress in passing Section 2(11) and would best serve to effectuate the underlying purposes of the Act. If our adherence to the text of and intent behind the Act should lead to consequences that some would deem undesirable, the effective remedy lies with the Congress.

From the dissenting opinion:

If the National Labor Relations Act required [the majority's interpretation]—if Congress intended to define supervisors in a way that swept in large numbers of professionals and other workers without true managerial prerogatives—then the Board would be dutybound to apply the statute that way. But that is not the case. The language of the Act, its structure, and its legislative history all point to significantly narrower interpretations of the ambiguous statutory terms “assign . . . other employees” and “responsibly to direct them” than the majority adopts. The majority rejects what it calls a “results-oriented approach” in interpreting the Act. But the reasonableness of the majority’s interpretation can surely be tested by its real-world consequences. Congress cared about the precise scope of the Act’s definition of “supervisor,” and so should the Board. Instead, the majority’s decision reflects an unfortunate failure to engage in the sort of reasoned decision-making that Congress expected from the Board, which has the “primary responsibility for developing and applying national labor policy.”

The NLRB issued this press release describing the Oakwood decision. The AFL-CIO has issued this press release criticizing the Board's decision, and the U.S. Chamber of Commerce issued this press release supporting it.

Here are some articles addressing the Board's decision:
Steven Greenhouse, Board Redefines Rules for Union Exemption, N.Y. Times, Oct. 4, 2006
Dale Russakoff, Some Workers Change Collars, Wash. Post, Oct. 4, 2006 at D01
Barbara Rose, Board Decision Could Bar More From Unions, Chicago Trib., Oct. 4, 2006
Lois M. Collins, Unions Criticize Ruling on Nurses, Deseret Morn. News, Oct. 4, 2006
Diane Stafford, Labor Board Decision Goes Against Unions, Kan. City Star, Oct. 4, 2006
Anya Sostek, , Pitt. Post-Gazette, Oct. 4, 2006NLRB: Nursing Supervisors Not Eligible for NLRB
Will Lester, NLRB Redefines Union Eligibility, Lacrosse Trib., Oct. 4, 2006
Alejandro Bodipo-Memba, Unions: Ruling Hurts Nurses, Det. Free Press, Oct. 4, 2006

The Board also issued two other decisions applying Oakwood's refined standard. Golden Crest Healthcare Center, 348 NLRB No. 39 (2006) (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that a group of nurses were statutory supervisors); Croft Metals, Inc., 348 NLRB No. 38 (2006) (Battista, Schaumber, and Kirsanow in unanimous decision finding that an employer failed to prove that its lead persons were statutory supervisors).

President Bush Nominates Wilma B. Liebman to Serve Another Term on the NLRB

2006-08-02T08:55:00.000-04:00

Yesterday, President Bush nominated current Member Wilma B. Liebman to another five-year term on the NLRB. Liebman's current term expires August 27, 2006. The President previously nominated Dennis Walsh, Peter Kirsanow, and Peter Schaumber to the seats they currently occupy as recess appointees. Ronald Meisburg has also been nominated to fill the General Counsel's position.

I suspect that the Senate will confirm all of these nominees as a package before it recesses on Friday, August 4. If Liebman is confirmed and serves out her term, she will become the third-longest-serving Member in the Board's 71-year history behind John Fanning (served 25 years) and Howard Jenkins (served 20 years). Here is a post that summarizes some Board decisions in which Member Liebman disagreed with her fellow Democrat, Member Walsh.

UPDATE: This agenda for today's Executive Session of the Senate HELP Committee indicates that the Senate may act on the nominations of Liebman, Schaumber, and Meisburg only (not Kirsanow or Walsh). The recess appointments of Kirsanow and Walsh last until the Senate adjourns in late 2007. Thus, there is no pressing need to confirm those two nominees. Postponing consideration of these two nominees until that time would create the opportunity for a three-Member package, including Chairman Battista, whose term expires in December 2007.

UPDATE: The Senate HELP Committee unanimously approved the nominations of Liebman, Schaumber, and Meisburg. The full Senate will now consider the nominations.

UPDATE: The Senate has confirmed Liebman, Schaumber and Meisburg.

Stephen Colbert is a Labor Law Fanatic

2006-07-19T12:07:00.000-04:00

Here is a clip, via American Rights at Work, from yesterday's Colbert Report in which Colbert proclaims that he "can't get enough of National Labor Relations Board Decisions; they are terrific!"

Colbert weighs in on a hot issue now before the Board: whether nurses are statutory supervisors and therefore not entitled to the Act's protection. Check it out.

Webcasts of Hiatt and Getman Lectures

2006-06-01T08:35:00.000-04:00

Back in November, I mentioned in a post that Jonathan Hiatt (pictured left) and Julius Getman were giving separate lectures on labor law. Webcasts of both lectures are now available online.

Hiatt's speech is particularly interesting. He notes that we live in a culture that values individual rights (e.g., the rights protected by Title VII, ADEA, FLSA) and marginalizes collective rights (e.g., the rights protected by the NLRA). Hiatt argues that citizens who value individual rights should care about collective rights because employees who pool their resources and speak with one voice are better equipped to enforce statutorily protected individual rights. Hiatt is quick to point out that collective bargaining is not merely a good mechanism for enforcing individual rights. Through collective bargaining, employees can protect themselves against arbitrary employer action that no law prohibits. Hiatt argues that collective bargaining increases employees’ bargaining power, which can help them to improve their wages and benefits, and provides a voice for employees who wish to give input to their employers on matters of common interest.

The Decline of Labor Unions: Is Labor Law to Blame?

Collective Rights in the Workplace Within a Culture of Individual Rights (Hiatt really starts his lecture at about the 10:30 mark.)

Representative Christopher Shays Introduces a Bill to Amend the NLRA

2006-05-30T12:11:00.000-04:00

On May 4, 2006, Representative Christopher Shays (R-CT) introduced a bill that would set statutory deadlines for the NLRB. The National Labor Relations Board Reform Act, H.R. 5310 IH, would require the Board to: (1) certify an election result not later than 12 months after the representation petition was filed; and (2) issue its order in a ULP case not later than 6 months after the General Counsel issued his complaint (not later than 12 months for “novel” issues). These statutory deadlines may be extended only with the agreement of the parties.

By providing that the Board shall act “not later” than these deadlines, the bill would seem to remove the Board’s statutory authority to act beyond the deadlines.

The bill would require the Board to act several times faster than it acts now. In FY 2005, the median for processing a ULP case from complaint to order was approximately 19 months. See Seventieth Annual Report of the NLRB at 171 (Table 23). In FY 2005, the median for processing a representation case from petition to Board decision was 9.5 months. Though this median is within the bill’s 12-month deadline, half of the cases took longer than the median, and many likely took far longer than 12 months. The median for representation cases awaiting Board decision as of September 30, 2005, was approximately 27 months from the date the petition was filed.

The Board would have great difficulty meeting the bill’s deadlines unless Congress significantly increases the Board’s resources. Absent improved funding, the bill likely would require the Board to give short shrift to many cases in order to avoid losing the power to act. Rushed decisions will likely be poorer decisions, and the Board may find it more difficult to obtain court enforcement.

Justice delayed is justice denied. Spurring the Board to enforce the Act faster is a laudable goal. However, setting short deadlines and removing the Board’s power to act beyond those deadlines may end up harming the Act’s intended beneficiaries.

Podcast with Board Member Peter Kirsanow

2006-04-04T09:15:00.000-04:00

This business podcast from the Cleveland Plain Dealer contains audio clips of an interview with Board Member Peter Kirsanow. The podcast discusses Kirsanow's background, his view of the union movement in today's global economy, the role of politics at the NLRB, and organized labor's concern over Kirsanow's recess appointment. The relevant part of the podcast is 3:35 to 9:50. Reporter Alison Grant, who conducted the interview, authored this piece on Kirsanow. Allison Grant, Distinctive Politics Set Labor-Board Member Apart, The Seattle Times (April 2, 2006).

Dunder-Mifflin Violates Section 8(a)(1)

2006-02-03T04:01:00.000-05:00

I cannot resist mentioning last night's episode of The Office. The warehouse employees tell Michael that they are interested in forming a union to improve their wages and benefits. Michael relays their interest to manager Jan, who gives the following speech to the warehouse employees.

"I am told that there has been some interest in forming a union and that Michael supported it. Obviously, he is not a friend of yours because he didn't tell you the facts; so let me. If there is even a whiff of unionizing in this branch, I can guarantee you that the branch will be shut down like that [snapping her fingers]. They unionized in Pittsfield, and we all know what happened in Pittsfield. It will cost each of you a fortune in legal fees and union dues and that will be nothing compared to the cost of losing your jobs, so I would think long and hard before sacrificing your savings and your future just to send a message."

Jan should have read NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), before delivering that speech. Her guarantee that that the branch would close upon any whiff of unionization does not look like a prediction carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond its control. I can't wait until next week's episode when a cease-and-desist order (with notice posting) puts Dunder-Mifflin back in its place.

Charles H. Goldstein Labor Law Symposium

2006-01-22T20:57:00.000-05:00

On February 17, The George Washington University Law School will host the Charles H. Goldstein Labor Law Symposium. The Symposium will address the following topics:

Is the NLRA an Outmoded Statute in the 21st Century?
Chair, Professor Charles Craver, GW Law School
Professor Cynthia Estlund, Columbia Law School
Jonathan Hiatt, General Counsel of the AFL-CIO
Robert Battista, NLRB Chairman

What Must Labor Unions Do to Survive in the 21st Century Economy?
Chair, Professor Fred Freilicher, GW Law School
Wilma Liebman, NLRB Member
Marshall Babson, Hughes, Hubbard & Reed
Judy Scott, General Counsel of SEIU
Professor Keith Hylton, Boston University School of Law

Moving to a Post-Industrial, Global Economy and the Decline of Labor Unions
Chair, Professor Charles Craver, GW Law School
Professor Marion Crain, UNC Law School
Pat Szymanski, General Counsel of the Teamsters

As an aside, the NLRB recently held that The George Washington University violated Section 8(a)(5) and (1) by refusing to bargain with a newly certified union that represents a unit of part-time faculty members.
See The George Washington University, 346 NLRB No. 13 (2005).

President Bush Recess Appoints Dennis P. Walsh to the NLRB

2006-01-18T02:57:00.000-05:00

On Tuesday, January 17, President Bush recess appointed Dennis P. Walsh to be a Member of the NLRB. The White House's announcement is here.

This recess appointment brings the Board to full strength. Robert Battista (R), the chairman, sits in the Murdock seat. His term will expire on 12/16/07. Peter Schaumber (R) sits as a recess appointee in the Madden seat. His appointment will expire at the end of this session of Congress. Peter Kirsanow (R) sits as a recess appointee in the Carmody seat. His appointment will expire at the end of Congress' next session. Wilma Liebman (D) sits in the Smith seat. Her term will expire on 8/27/06. And Dennis Walsh (D) sits as a recess appointee in the Gray seat. His appointment will expire at the end of Congress' next session. Nominations for each of the recess appointees are pending in the Senate.

NLRB Declines to Rule on Legality of Inflatable Rat

2006-01-16T18:35:00.000-05:00

The NLRB recently avoided resolving a hot issue when it declined to answer whether a union violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near a secondary employer’s entrance. Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB No. 22, slip op. at 2, n.3 (2006).

In that case, the General Counsel issued a complaint alleging that the respondent union violated the Act on two separate occasions. First, the GC argued that the union violated Section 8(b)(4)(ii)(B) by displaying the inflatable rat. Second, the GC argued that the union violated that same section by staging a mock funeral procession during which union members patrolled the public sidewalk in front of the secondary employer while carrying a faux casket. An ALJ found that each action separately violated Section 8(b)(4)(ii)(B). The Board unanimously adopted the judge’s finding that union violated the Act by engaging in the mock funeral procession. Reasoning that a finding of an additional violation would be cumulative and would not affect its Order, the Board declined to address the legality of the inflatable rat.

The press has given a good deal of attention to the inflatable-rat issue lately. See Joy Davia, Inflatable Rats Seek Cover After Labor Board’s Ruling, Dem. & Chron., Sept. 25, 2005; Alison Grant, Free Speech or Vermin?, Plain Dealer, Oct. 4, 2005; Jessica Marquez, Unions’ Inflatable Rat an Endangered Species, Workforce Management, Sept. 9, 2005; Alan Feuer, Labor’s Huge Rubber Rat, Caught in a Legal Maze, N.Y. Times, Dec. 28, 2005, at B1 (subscription required). To see streaming video of MSNBC coverage, click this link, insert “rat becomes union protest symbol” into the "MSN Video search" box, and click on the result. The issue has also received some academic commentary. See Timothy F. Ryan and Kathryn F. Davis, Banners, Rats, & Other Inflatable Toys, 20 Lab. Law. 137 (2004).

Displaying a large inflatable rat is similar in many respects to erecting a large banner. The Board has been unsuccessful in its attempts to persuade federal courts in Section 10(l) proceedings that reasonable cause exists to believe that unions have violated the Act by erecting large banners near secondary employers. Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005); Gold v. Mid-Atl. Reg’l Council of Carpenters, 2005 WL 3597692 (D. Md. Dec. 22, 2005). It remains to be seen how the newly constituted Board will handle these issues.

President Bush Makes Recess Appointments to the NLRB

2006-01-04T23:15:00.000-05:00

On January 4, President Bush recess appointed Ronald E. Meisburg as the General Counsel and Peter N. Kirsanow as a Member of the NLRB. The President had nominated Meisburg and Kirsanow for these positions in July and November 2005, respectively. Both of those nominations have been referred to the Senate Committee on Health, Education, Labor, and Pensions, as was the President's April 2005 nomination of Dennis P. Walsh to serve as a Member of the Board. The President declined to recess appoint Walsh.

The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office.

The recess appointments follow quickly on the heels of an article in the Wall Street Journal authored by the president of the National Right to Work Legal Defense Foundation, Mark Mix. In the December 31 article, Mix urged the White House "to get off the dime and install an NLRB majority" to address the Dana/Metaldyne cases, among others, free from the constraint of institutional adherence to precedent.

Will the appointments satisfy Ross Runkel ?

Midwinter Meeting of the ABA’s Labor Law Committee

2005-12-08T16:07:00.000-05:00

The Committee on Development of the Law Under the National Labor Relations Act of the American Bar Association’s Section of Labor & Employment Law is holding its Midwinter Meeting in Rancho Mirage, California from February 26 to March 1, 2006. The meeting, entitled “A Trip Though Oz,” will include panel discussions on the following topics:

“If I Only Had the Nerve” . . . I Would Analyze the Impact of Section 7 Rights on National Security Issues. Guardsmark, LLC, 344 NLRB No. 97 (2005); Firstline Transportation Security, Inc., 344 NLRB No. 124 (2005); IBM Corp., 341 NLRB No. 148 (2004).

“We’re Off to See the Wizards”: A Panel Discussion on the Record of the Bush Board – Return to Longstanding Precedent or Decimation of Worker Rights?

“If I Only had a Heart” . . . How Many of My Employees Would I Lock Out? Bunting Bearing Corp., 343 NLRB No. 64 (2004); Midwest Generation, EME, LLC, 343 NLRB No. 12 (2004); Allen Storage & Moving Co., Inc., 342 NLRB No. 44 (2004); Sociedad Espanola de Auxilio Mutuo y Beneficencia de P.R., 342 NLRB No. 40 (2004).

“Ding Dong the [Clear and Unmistakable Waiver Test for 8(d) Violations] is Dead” . . . Or is It? Bath Iron Works, 345 NLRB No. 33 (2005).

“Follow The Yellow Brick Road” . . . to an Understanding of the Board’s Views on Supervisor Pro-Union Conduct. Harborside Healthcare, Inc., 343 NLRB No. 100 (2004); Chinese Daily News, 344 NLRB No. 132 (2004); Glen’s Market, 34 NLRB No. 25 (2005).

“If I Only Had a Brain” . . . I Could Figure Out the Contours of Concerted Activity Versus Other Competing Rights. Quietflex Mfg. Co. L.P., 344 NLRB No. 130 (2005).

These sound like very interesting topics. Also, Chairman Battista, Members Liebman and Schaumber, and Acting General Counsel Rosenfeld will speak at the meeting. I wonder what they will make of the Wizard-of-Oz metaphor.

President Bush To Nominate Peter N. Kirsanow To Serve On The NLRB

2005-11-16T12:06:00.000-05:00

From the White House's webpage:

The President intends to nominate Peter N. Kirsanow, of Ohio, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring August 27, 2008. Mr. Kirsanow is currently a Partner with Benesch Friedlander Coplan & Aronoff, LLP. In addition, he serves as a Member of the United States Commission on Civil Rights. Mr. Kirsanow previously served as Senior Legal Counsel for Leaseway Transportation Corporation in Cleveland, Ohio. Prior to that, he served as Labor Counsel for the City of Cleveland. Earlier in his career, Mr. Kirsanow practiced law with Calfee, Halter & Griswold, LLP. He received his bachelor's degree from Cornell University and his JD from Cleveland Marshall College of Law.

I'm sure that Kirsanow hopes that this nomination will be less problematic than his 2001 appointment to the U.S. Commission on Civil Rights. See U.S. v. Wilson, 290 F.3d 347 (D.C. Cir. 2002) (reversing district court and holding that the Commission improperly refused to recognize Kirsanow as one of its members).

Upcoming Lectures on Labor Law

2005-11-09T12:00:00.000-05:00

Jonathan Hiatt, the General Counsel of the AFL-CIO, will speak on "Collective Rights in the Workplace Within a Culture of Individual Rights" next Wednesday, November 16, at Georgetown University Law Center. In recent speeches, Hiatt has been a vocal critic of the current NLRB, arguing that it has unwisely reversed precedent or seriously undermined it in approximately 40 cases.
UPDATE: I've learned that this lecture is invitation-only.

On March 8, 2006, Professor Julius Getman will give a lecture on "The Decline of Unions: Is Labor Law to Blame?" at Case Western Reserve University School of Law. The law school will be webcasting Getman's lecture live at 4:30 p.m., here. Professor Getman will address whether labor law is responsible for the decline in union density and whether Congress should amend the NLRA to promote unionization. Getman has previously argued that, absent an amendment, "[i]t is far too late in the day to fundamentally change the role of the Board or the interpretation of the NLRA." Julius Getman, Unions & The NLRB, 8 Green Bag 2d 29, 31 (2004). He has advocated for amendments to the NLRA that would overturn the Mackay doctrine on permanant replacements, repeal Section 8(b)(4), and relax the limits of Section 8(a)(2). Julius Getman, The National Labor Relations Act: What Went Wrong; Can We Fix It?, 45 Boston College Law Rev. 125 (2003).

Thanks to Richard Bales at Workplace Prof Blog for the information.

Seventh Circuit Denies Enforcement in Midwest Generation

2005-11-02T08:52:00.000-05:00

The Seventh Circuit refused to enforce the NLRB's decision in Midwest Generation, 343 NLRB No. 12 (2004), which had dismissed an allegation that an employer violated Section 8(a)(3) when, after a union's unconditional offer to stop striking, it locked out full-term strikers while allowing nonstrikers and crossovers to continue working. Local 15, IBEW v. NLRB, No. 05-1058 (7th Cir. Oct. 31, 2005). The court held that the employer lacked a legitimate and substantial business justification for treating the two groups of employees differently. The court relied heavily on Member Walsh's dissent in so holding. Earlier this year, I criticized the Board's Midwest Generation decision in this post.

NLRB Elaborates on Harborside and Glen’s Market

2005-10-07T15:05:00.000-04:00

In Millard Refrigerated Services, Inc., 345 NLRB No. 95 (2005), the Board elaborated on the cases of Harborside and Glen’s Market and the law governing pro-union supervisors who urge employees to sign authorization cards.

As noted in a previous post, the Board in Harborside established the rule that a pro-union supervisor commits objectionable conduct if she solicits authorization cards, absent mitigating circumstances. In Glen’s Market, however, the Board held that a pro-union supervisor did not commit objectionable conduct when she solicited the authorization cards of employees not under her supervision. In so holding, the Board relied on the fact that the soliciting supervisor in that case did not have supervisory authority over the solicited employees. The Board reasoned that, under the circumstances in that case, the supervisor’s conduct did not interfere with the employees’ free choice.

In Millard Refrigerated Services, the Board held that a pro-union supervisor committed objectionable conduct when he solicited the card of an employee whom he did not supervise. In that case, supervisor Steen supervised employee Elliott. Supervisor Rork supervised other employees, not Elliott. Rork asked Elliott to sign an authorization card. Around the same time, Elliott’s supervisor, Steen, asked other employees to sign authorization cards.

The Board held that supervisor Rork committed objectionable conduct when he asked employee Elliott to sign an authorization card, even though Rork did not supervise Elliott. The Board distinguished Glen’s Market. In Glen’s Market, the supervisor of the solicited employee had not asked any employees to sign authorization cards. In contrast, in Millard Refrigerated Services, Elliott’s supervisor, Steen, had asked other employees to sign cards. The Board explained that Elliott could reasonably conclude that his own supervisor, Steen, wished that he would sign a card. Consequently, the Board found that Rork’s solicitation of Elliott, in that context, interfered with Elliott’s free choice.

Member Liebman dissented. She read Glen’s Market as establishing the rule that “an employee reasonably could not be affected by conduct directed at him by a prounion supervisor who does not supervise that employee.” Under Member Liebman’s interpretation, Elliott could not reasonably have been affected by Rork’s pro-union conduct.

Unions must be careful when using supervisors to solicit authorization cards in light of Millard Refrigerated Services. Even if supervisors limit their solicitations to employees who are outside of their chain of command, the Board might still invalidate an election.

President Bush Announces His Intention to Recess Appoint Peter C. Schaumber to the NLRB

2005-09-01T11:46:00.000-04:00

On August 31, President Bush announced his intention to recess appoint Peter C. Schaumber, of the District of Columbia, to be a Member of the National Labor Relations Board, for the remainder of a five-year term expiring on August 27, 2010.

Schaumber's first term expired this past Saturday, August 27. With that expiration, the Board was reduced to just two Members. As reported in the Daily Labor Report, the Board had announced that it would take the unprecedented action of issuing decisions with only two Members. By recess appointing Schaumber, the President avoids potential litigation over whether the Board has statutory authority to issue two-Member decisions.

The White House's announcement appears here.

Here is a post that compares the voting records of Member Schaumber and his Republican colleagues.

UPDATE:
The Board issued one case with a two-Member Board. In Bon Harbor Nursing & Rehabilitation Center, 345 NLRB No. 55 (2005), a two-Member Board granted the General Counsel’s motion to strike a letter, filed by the respondent, attempting to inform the Board of new authority that came to the respondent’s attention after having filed its brief. The Board generally allows a party to file a letter calling the Board’s attention to “pertinent and significant” authorities that come to the party’s attention after having filed a brief. The two-Member Board found that the authority cited in the respondent’s letter, a Regional Director’s decision not to issue a complaint, was not a “significant” authority. Consequently, it granted the motion to strike.

In a footnote, the Board provided its rationale for concluding that it had statutory authority to issue the decision with just two Members:

On August 26, 2005, Chairman Battista and Members Liebman and Schaumber delegated to themselves, as a three-member group, all of the Board’s powers in anticipation of the expiration of then-Member Schaumber’s term on August 27, 2005. Pursuant to this delegation, the remaining Board members constitute a quorum of the three-member group. As a quorum, Chairman Battista and Member Liebman have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.

Id., slip op. at 1 fn.1.

It is highly unlikely that a court of appeals will ever review the Board’s two-Member decision. The order striking the letter likely is not “a final order of the Board granting or denying in whole or in part the relief sought” over which a court would have jurisdiction. See 29 U.S.C. § 160(f) (emphasis added).

Assume that the Board later issues a decision finding that the respondent committed unfair labor practices and orders the respondent to take certain action without mentioning the Regional Director’s decision that the respondent wished the Board to consider. Assume further that the respondent petitions a court of appeals for review of that final order, arguing that the Board erred in refusing to consider the Regional Director’s decision and that it lacked the statutory authority to issue the two-Member decision granting the General Counsel's motion to strike. I think that a court would likely find it unnecessary to pass on the Board’s statutory authority to issue a two-Member decision under these circumstances. A Regional Director’s decision not to issue a complaint is not reviewable by the Board and does not constitute controlling law before the Board. A court very likely would not refuse to enforce a Board order merely because the Board failed to reconcile its decision with a Regional Director’s refusal to issue a complaint on similar facts. Therefore, even assuming that the Board lacked statutory authority to grant the GC’s motion to strike the respondent’s letter, it would not affect the outcome of the case and a court need not address the issue.

UPDATE:
As reported in the Daily Labor Report, the two-Member Board also issued three unpublished orders in representation cases.

Chairman Battista Defends Guardsmark

2005-08-26T19:23:00.000-04:00

In a letter to the editor of The Washington Post, NLRB Chairman Robert J. Battista defends the Board's decision in Guardsmark and responds to the criticism levied by Harold Meyerson and Amy Joyce in their respective columns. Robert J. Battista, Letter to the Editor, Wash. Post, Aug. 26, 2005, at A20.

Guardsmark in The Washington Post, Again

2005-08-22T16:24:00.000-04:00

On August 21, The Washington Post published another piece discussing the Board’s decision in Guardsmark, LLC, 344 NLRB No. 97 (2005). Amy Joyce, Undercover Friends: Firms That Discourage Mixing Have It Wrong, Wash. Post, August 21, 2005, at A17

Joyce begins her piece by briefly describing the Board’s decision in Guardsmark. Joyce implies that the NLRB granted employers a new legal right to control their employees’ off-duty activities when it issued the Guardsmark decision:

“[C]an a company really dictate what we can do outside work? Well, until June 7 [the date that the Board issued Guardsmark] rolled around, it probably couldn't. But now, the labor board has set a precedent that could really hurt our workplaces, morale and culture.”

Please see my post below addressing the merits of the Guardsmark decision.

Washington Post Columnist Criticizes the NLRB’s decision in Guardsmark

2005-08-11T20:32:00.000-04:00

On August 10, The Washington Post printed a column by Harold Meyerson criticizing the Board’s recent decision in Guardsmark, LLC, 344 NLRB No. 97 (2005). Harold Meyerson, Big Brother On and Off the Job, Wash. Post, August 10, 2005, at A17

I think that Guardsmark is a weak decision for the reasons set forth below. Nevertheless, I think that Meyerson’s criticism of the decision is somewhat off base and reflects a misunderstanding of the National Labor Relations Act and the Board’s authority.

In Guardsmark, the Board held that an employer did not violate Section 8(a)(1) by maintaining the following rule in its employee handbook: “[Employees] must NOT . . . fraternize on or off duty, date[,] or become overly friendly with the client’s employees or with co-employees.” The majority (Battista and Schaumber) thought that no reasonable employee could interpret this rule as restricting union activity or any other concerted activity for mutual aid or protection. The majority emphasized that the prohibition on fraternizing appeared alongside prohibitions on dating or becoming overly friendly with coworkers in finding that employees could not reasonably interpret the rule as anything other than a prohibition on personal entanglements with coworkers. In other words, the majority found that it would be unreasonable for employees to read the prohibition on fraternization as precluding them from meeting together to discuss terms and conditions of employment.

Member Liebman dissented. She argued that employees could reasonably interpret the employer’s ban on employee fraternization as prohibiting employees from meeting to discuss terms and conditions of employment. Because the rule already banned dating and becoming overly friendly, Liebman argued that employees could reasonably assume that the ban on fraternization must apply to other activities. She pointed out that the verb “fraternize” means to associate with others in a brotherly manner, which she thought would cover meetings to discuss work-related problems, activity protected by the Act. Consequently, she voted to find a violation.

I think that Guardsmark is a poor decision for the reasons set forth in Member Liebman’s dissent. An employer’s rule violates Section 8(a)(1) if employees can reasonably interpret it as prohibiting concerted activity for mutual aid or protection, even if a noncoercive reasonable interpretation of the rule also exists. Double D Construction Group, Inc., 339 NLRB 303, 303-04 (2003), cited with approval in Joseph Chevrolet, Inc., 343 NLRB No. 2, slip op. at 3 (2004). The majority’s interpretation of the rule as an anti-socializing rule certainly is one reasonable interpretation of the rule. However, Member Liebman identified another reasonable interpretation, one that restricts Section 7 activity. Under Double D Construction, the employer’s rule violated the Act.

Despite my disagreement with the Guardsmark majority, I think that Meyerson’s criticism is misguided. Meyerson contends that Guardsmark is a “remarkable ruling that expands the rights of employers to muck around in their workers’ lives when they’re off the job.” With that statement, Meyerson implies that the Board bestowed on employers some new privilege to regulate the off-duty affairs of their employees and that the Board had previously interpreted the NLRA to limit an employer’s regulation of employees’ off-duty activities. He suggests that Guardsmark is a “precedent that can be applied to a far wider range of workers in a far wider range of situations.” For example, he suggests that the Board’s ruling could be responsible for legalizing employers’ rules prohibiting workers from playing poker at each others’ homes or meeting for a weekend picnic. He even states that the Board would encourage such rules: “[t]he National Labor Relations Board (NLRB) doesn't want the employees chatting it up off the job.”

The truth is that Guardsmark does not establish some new employer right to regulate the off-duty affairs of their workers; that “right” is a longstanding function of the limited nature of our federal labor laws. The NLRA is a limited statute in some respects. It grants employees the right to engage in concerted activities for mutual aid or protection. It prohibits employers from coercing, interfering with, or restraining employees in the exercise of that right. The NLRA is not a catch-all labor statute that makes unlawful all idiotic, counterproductive rules that employers might implement and enforce. Specifically, the NLRA does not prohibit employers from adopting and enforcing ridiculous rules prohibiting employees from socializing with each other off-duty, provided that the ridiculous rule cannot reasonably be interpreted as preventing employees from engaging in concerted activity for mutual aid or protection.

As stated above, I think the Board failed to properly apply that proviso. Assuming, however, that the Board correctly found that it was unreasonable for employees to read the rule as restricting protected activity, the employer acted lawfully even though its rule prohibited all sorts of off-duty activities with each other. Thus, the Guardsmark decision does not represent some seismic shift in labor law, as Meyerson’s column suggests. Instead, it is a run-of-the-mill weak decision.

In writing this blog entry, I wondered whether the Board could expand current law and declare unlawful the kinds of rules cited by Meyerson that prohibit poker parties and picnics, even when it is unreasonable for employees to interpret those rules as restricting protected activity. One could argue that off-duty socialization is a necessary precursor to concerted activity for mutual aid or protection. Accepting this premise, anti-socializing rules indirectly interfere with protected activity by preventing employees from coming together in the first instance to create an atmosphere in which they would feel comfortable discussing terms and conditions of employment. A Board adopting this interpretation might allow an employer to justify its ban on off-duty socializing by pointing to some legitimate business reason for the ban. Whatever the merits of this interpretation, it surely is not current law.

Hidden Cameras, Pot-Smoking Employees, and Fruit of the Poisonous Unfair Labor Practice: D.C. Circuit Partially Enforces NLRB Decision

2005-07-07T10:15:00.000-04:00

The D.C. Circuit recently partially enforced an NLRB decision holding that Anheuser-Busch violated Section 8(a)(5) by installing and using hidden surveillance cameras in the workplace without first bargaining with its employees' union. Brewers & Maltsters, Local No. 6 v. NLRB, No. 04-1278 (D.C. Cir. July 5, 2005), partially enforcing 342 NLRB No. 49 (2004). Without bargaining with or even notifying the union, Anheuser-Busch installed two hidden cameras near an elevator motors room, which served as a de facto employee break room. Footage from the cameras showed five employees smoking marijuana and other employees urinating on the roof of the facility, sleeping on the job, and/or taking extended unauthorized breaks. The cameras also captured footage of other employees engaged in no misconduct.

Anheuser-Busch fired the five employees who had smoked marijuana and imposed lesser discipline on the other employees who urinated, slept on the job, and/or took excessively long breaks. The union filed a ULP charge alleging that Anheuser-Busch failed to bargain in good faith.

Consistent with Board precedent, the Board (Battista and Walsh; Schaumber dissenting) held that use of hidden cameras in the workplace is a mandatory subject of bargaining. Consequently, the Board held that Anheuser-Busch violated Section 8(a)(5) by failing to bargain with the union before installing and using the cameras. In so holding, the Board disclaimed any suggestion that Section 8(a)(5) obligates employers to notify unions where they plan to locate hidden cameras. The Board stated that good-faith bargaining depends upon the facts of each case and the course of negotiations.

Finally, the Board (Battista and Schaumber; Walsh dissenting) fashioned the remedy for the company's violation. The Board ordered Anheuser-Busch to cease and desist from refusing to bargain with the union before installing and using hidden cameras. Importantly, the Board refused to order the company to reinstate the employees whom the company discharged for smoking marijuana or to rescind the discipline imposed on the other employees. The Board reasoned that such relief would be "contrary to the specific remedial restriction contained in Section 10(c)," which provides that "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was suspended or discharged for cause." The Board distinguished several earlier cases that ordered backpay and reinstatement of employees discharged for cause, reasoning that those cases involved a nexus between the employer's unlawful conduct and the employees' misconduct. Unlike those cases, the Board found that an insufficient nexus existed between Anheuser-Busch's unlawful conduct (using the cameras without bargaining) and the employees' misconduct (using drugs, urinating on the roof, and sleeping on the job) to warrant reinstatement.

Anheuser-Busch petitioned the D.C. Circuit for review of the Board's order, arguing that the Board erred in finding that it unlawfully refused to bargain. The union cross-petitioned, arguing that the Board erred in refusing to order the company to reinstate the discharged employees or to rescind the other discipline. The D.C. Circuit unanimously agreed that Anheuser-Busch unlawfully refused to bargain. On the other hand, a panel majority (Judges Rogers and Ginsburg) held that the Board failed to adequately explain why it refused to order Anheuser-Busch to reinstate the discharged employees or to rescind the other discipline. The majority first found that Section 10(c) does not expressly address whether the Board shall or shall not deny make-whole relief where an employer would not have discovered its employees' misconduct but-for its own unlawful action. The majority noted that Section 10(c) "does not prevent the Board from insisting that the employer prove 'cause' without using 'fruit' of the violation . . . Section 10(c) does not speak to burdens of persuasion, fruits of violations, exclusionary rules, and other paraphernalia of trials and inferences." The majority explained that, given Section 10(c)'s failure to address the issue of whether an employer can rely on employee misconduct that it discovers through its own unlawful conduct, the Board could adopt a rational rule to fill the statutory interstice. The majority nevertheless held that the Board failed to adequately explain its remedial decision. Specifically, the majority held that the Board failed to adequately distinguish its earlier precedent. Consequently, the majority remanded the case to the Board to articulate a rational basis for its remedial order.

In dissent, Judge Sentelle asserted that Section 10(c) "absolutely and unqualifiedly" prohibits the Board from ordering an employer to reinstate an employee who was discharged for cause. He essentially argued that Section 10(c) does not set forth an exception pursuant to which the Board may order reinstatement of an employee discharged for cause where the employer learns of the employee's misconduct as a result of its own unfair labor practice. Because the statute absolutely prohibits the Board from ordering reinstatement of an employee discharged for cause, Judge Sentelle would have enforced the Board's limited remedial order.

George's Employment Blawg, Jottings By An Employer's Lawyer, and Ross' Employment Law Memo have additional coverage of this case:

http://employmentblawg.blogspot.com/2005/07/busted-and-fired-but-maybe-reinstated.html

http://employerslawyer.blogspot.com/

http://www.lawmemo.com/blog/

On Wednesday, July 6, Tucker Carlson discussed the D.C. Circuit's opinion on his MSNBC show "The Situation With Tucker Carlson." He argued that the government has no business meddling in Anheuser-Busch's personnel decisions and simultaneously expressed his opposition to compulsory unionism. Here is a transcipt of the segment from: http://www.msnbc.msn.com/id/8498065/

CARLSON: A pot party at a beer factory may go unpunished. Anheuser-Busch may have to rehire five employees it fired for getting high on the job. They busted them using hidden cameras in a break area. A federal appeals court ruled that not telling the employees' union about the cameras was an unfair labor practice.

Here's my question, Rachel Maddow, how the hell is the federal government involved in hiring and firing decisions at this level? It's Anheuser-Busch's beer factory. They don't you want you getting a high—you know, getting high in the elevator maintenance room. They have a right to fire you. What is the federal government intervening for?

MADDOW: The federal government is intervening because unions have rights.

GASPARINO: Do you have a right to smoke pot at work?

MADDOW: The union has said that, if you're going to have hidden cameras, we need to know about it. And that's part of labor law, that they get to have that privilege.

GASPARINO: And tell everybody that they're hidden.

MADDOW: Yes, but you don't get to know where they are. I mean, it happens to be...

GASPARINO: Wait a second, don't they...

MADDOW: ... that's part of labor law.

(CROSSTALK)

MADDOW: And so therefore, the federal government is protecting labor laws.

CARLSON: No, but I understand that. But back up just two steps. Do you think that Anheuser-Busch, whether told about the cameras or not, ought to have a right to fire people for smoking pot at work if they want to?

MADDOW: They can fire people for smoking pot at work.

CARLSON: But they can't.

MADDOW: But they can't have hidden cameras without telling the union that...

(CROSSTALK)

GASPARINO: It's not like Anheuser-Busch had a hidden camera in the bathroom, OK? They had it in a public place, where you know you're being watched anyway, you know? I mean, basically...

(CROSSTALK)

CARLSON: Apparently, they caught seven employees urinating and/or sleeping on the roof of the Anheuser-Busch factory.

MADDOW: Well, listen, I'm in a union. And if my union has negotiated that I have to be told if there are hidden cameras in my workplace, then if the workplace violates that, yes, I want the government to step in, if that's my right.

CARLSON: Well, I'm in a union, too. Not by choice, because I have to be, and I resent it. And I just want to say clearly, I don't want to be in a union. You should be in the union if you want to. If you don't want to be, you shouldn't have to be.

(CROSSTALK)

MADDOW: Well, I resolve to give you a pass because you're not helping.

GASPARINO: But you shouldn't be smoking pot at work.

CARLSON: Yes, or sleeping on the roof.

GASPARINO: Or urinating...

(CROSSTALK)

CARLSON: All right. Charlie Gasparino, Rachel Maddow, thank you both.

MADDOW: Thank you, Tucker.

President Bush Nominates Peter C. Schaumber to Serve as a Member of the NLRB and Ronald E. Meisburg to Serve as the NLRB's General Counsel

2005-07-06T13:50:00.000-04:00

President Bush today nominated Peter C. Schaumber to serve a second term as a Board Member for a five-year period ending on August 27, 2010.

President Bush also nominated Ronald E. Meisburg to serve a four-year term as the NLRB's General Counsel. The President simultaneously withdrew Meisburg's January 25 nomination to serve as a Board Member. If confirmed as General Counsel, Meisburg will fill a vacancy left by Arthur Rosenfeld.

The White House's announcement is at:
http://www.whitehouse.gov/news/releases/2005/06/20050630-2.html

Member Schaumber consistently sided with his Republican colleagues on major policy issues during his first term. See Harborside Healthcare Inc., 343 NLRB No. 100 (2004); Crown Bolt Inc., 343 NLRB No. 86 (2004); Oakwood Care Center, 343 NLRB No. 76 (2004); Brown University, 342 NLRB No. 42 (2004); Dana Corp., 341 NLRB No. 150 (2004); IBM Corp., 341 NLRB No. 148 (2004). After a thorough (but perhaps not exhaustive) review, I found 55 occasions on which Member Schaumber and a fellow Republican Member disagreed on the outcome of an alleged violation. Member Schaumber adopted the more “pro-employer” position on 34 of those 55 occasions (e.g., he found that an employer’s conduct was lawful where a fellow Republican found that it violated the Act). As detailed below, Member Schaumber adopted the more pro-employer position on each of the 6 occasions he disagreed with Member Meisburg, on 8 of the 9 occasions that he disagreed with Member Acosta, and on 20 of the 40 occasions that he disagreed with Chairman Battista. This voting record suggests that Member Schaumber and Chairman Battista are about equally conservative and that Member Schaumber is more conservative than were (former) Members Meisburg and Acosta. Of course, these numbers are not the only relevant data when determining the relative conservatism of a particular Member, but they are easily quantifiable and informative.
[Updated on September 17, 2005.]

Cases Where Member Schaumber Adopted a More Pro-Employer Position Than His Fellow Republicans
Ryan Iron Works, Inc., 345 NLRB No. 56 (2005) (Battista and Liebman ordered employer who violated Section 8(a)(5) by failing to make pension contributions to pay 20% liquidated damages called for in plan documents incorporated by reference in the CBA; Schaumber dissented in part, finding that the plan documents called for only a 5% liquidated damages payment)

Southern Mail, Inc., 345 NLRB No. 43 (2005) (Battista and Liebman held that an employer violated Section 8(a)(3) by making its disciplinary policy harsher in retaliation against employees’ protected activities and by discharging two employees pursuant to the harsher policy; Schaumber voted to find that the employer was not motivated by protected activity when changing its disciplinary policy and that therefore the change did not violate Section 8(a)(3); Schaumber also voted to find that the employer did not violate Section 8(a)(3) by relying on the changed rule to terminate the two employees, though he found that one of the employees was discriminatorily discharged under a different rationale).

Lake Mary Health & Rehabilitation, 345 NLRB No. 37 (2005) (Battista and Liebman invalidated an employer’s victory, finding that the employer tainted the election by announcing to employees that it was rescinding an extra-shift bonus that it had historically paid to them; Schaumber dissented, arguing that the union failed to prove that the announcement interfered with employee free choice)

Lee Builders, Inc., 345 NLRB No. 32 (2005) (Battista and Liebman held that an employer violated Section 8(a)(3) by discharging employee, who had tested positive for drug use, because of his union activity; Battista and Liebman relied on an earlier incident in which the employer allowed another employee to retain his job after testing positive for drug use to conclude that the employer failed to prove that it would have terminated the employee absent his union activity; Schaumber dissented, arguing that the alleged discriminatee and the other employee were not similarly situated and that therefore the employer’s treatment of the other employee did not undermine the employer’s argument that it would have terminated the alleged discriminatee even absent his union activity)

Postal Service, 345 NLRB No. 26 (2005) (Battista and Liebman issued a broad order requiring an employer to cease and desist from violating the Act in any manner; Schaumber dissented, arguing that the Board lacked statutory authority to issue such a broad order under the circumstances of the case).

Postal Service, 345 NLRB No. 25 (2005) (Battista and Liebman issued a broad order requiring an employer to cease and desist from violating the Act in any manner; Schaumber dissented, arguing that the Board lacked statutory authority to issue such a broad order under the circumstances of the case).

E.L.C. Electric, Inc., 344 NLRB No. 144 (2005) (Battista and Liebman held that employer violated Section 8(a)(1) by telling employees during the critical period that it was actively seeking to improve health benefits; Schaumber dissented arguing that employer's statement was not coercive because it was in response to employee's question and because he thought it did not contain a promise or threat)

Albertson's, 344 NLRB No. 141 (2005) (Battista and Liebman finding that bookkeeper was employer's agent because, at the employer's direction, she sat in on disciplinary meetings and made threats that supervisor present failed to disclaim; Schaumber dissented arguing that, under all the circumstances, employees would not reasonably think that bookkeeper reflected company policy)

Partylite Worldwide, Inc., 344 NLRB No. 155 (2005) (Battista and Liebman set aside employer's election victory because eight high-ranking managers stood at entrances to parking lot and watched union agents distribute campaign literature for 15 minutes; Schaumber dissented, arguing that managers' silent presence at parking lot entrances did not interfere with employee free choice)

Spartech Corp., 344 NLRB No. 72 (2005) (Battista and Liebman held that employer violated Section 8(a)(1) by created the impression that it was surveilling employees’ union activities when a supervisor told an employee that a manager knew who had attended a union meeting the day before; Schaumber dissented, arguing that an employee could not reasonably interpret the supervisor’s statement as creating an impression of surveillance because the union meeting was held in a public park near the employer’s facility)

TNT Logistics, 344 NLRB No. 61 (2005) (Battista and Liebman granted default judgment against employer on allegation that it unlawfully refused to furnish financial information to union, reasoning that employer admitted relevance of information by failing to answer; Schaumber dissented, arguing that complaint allegation did not establish that employer triggered duty to furnish such info by claiming inability to pay)

Washington Fruit & Produce Co., 343 NLRB No. 125 (2004) (Battista and Walsh held that an employer violated Section 8(a)(3) by issuing a harsher warning to a union supporter than it issued to another employee for committing the same error; Schaumber voted to find no violation, arguing that the two employees were not similarly situated because the union supporter had previous warnings while the other employee had none)

Jewish Home for the Elderly of Fairfield County, 343 NLRB No. 117 (2004) (Battista and Walsh held that employer violated Section 8(a)(1) by monitoring employees’ protected activities and by creating the impression of surveillance; Schaumber, dissenting, argued that the employer’s actions did not rise to the level of actual or implied surveillance)

CBS Broadcasting Inc., 343 NLRB No. 96 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(5) by modifying a collective bargaining agreement with the consent of only one of two unions that jointly represented the employees; Schaumber dissented, arguing that the parties had a past practice of such negotiations that estopped the joint representative from challenging the employer’s actions)

Allied Mechanical Inc., 343 NLRB No. 74 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(1) by removing campaign literature from two posting areas when it permitted employees to post other notices unrelated to work there; Schaumber dissented, arguing that the Board should find no violation because the employer allowed employees to post campaign literature in other areas of facility)

Parkview Hospital, Inc., 343 NLRB No. 13 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(3) by giving an employee a negative evaluation because of her union activity; Schaumber dissented, arguing the GC did not satisfy his initial burden of showing that union animus motivated the decision).

Amptech, Inc., 342 NLRB No. 117 (2004) (Meisburg and Walsh held that employer violated Section 8(a)(1) by distributing survey soliciting employee grievances 5 months after union campaign ended, reasoning that employer’s unfair labor practices during that 5 months showed that employer designed survey to correct the discontent that led to the union campaign; Schaumber dissented, arguing that the relationship between the survey and the union campaign was too attenuated to find a violation given the 5-month passage of time)

Anheuser-Busch, Inc., 342 NLRB No. 49 (2004) (Battista and Walsh held that employer violated Section 8(a)(5) by installing and using hidden surveillance cameras in workplace without first bargaining with union; Schaumber dissented, arguing that employer's actions were lawful because it placed cameras in an isolated area based on its suspicions that employees were using drugs there)

Snap-On Tools, Inc., 342 NLRB No. 2 (2004) (Meisburg and Walsh held that employer engaged in objectionable conduct when it posted a memo entitled “Employee Strike Costs,” which listed strikes as other facilities, the duration of the strike, and the cost to employees; they reasoned that the memo essentially predicted a 1-week strike if employees unionized; Schaumber dissented, arguing that the memo did not predict a strike but merely set forth an estimate of how much a strike would likely cost if one occurred)

Sam Manuel Indian Bingo & Casino, 341 NLRB No. 138 (2004) (Battista, Liebman, and Walsh asserted jurisdiction over a commercial enterprise that is wholly owned and operated by an Indian tribe on the tribe’s reservation; Schaumber dissented, arguing that the Board lacks statutory authority to assert jurisdiction over such enterprises)

Donaldson Bros. Ready Mix, Inc., 341 NLRB No. 124 (2004) (Battista and Walsh held that employer unlawfully created an impression that it was monitoring its employees’ union activities when manager told an employee that he thought that employee and four others were leaders of the union campaign; Schaumber dissented, arguing that an employee could not reasonably infer surveillance from the manager’s comment because the manager’s information could have come not from surveillance but from the company grapevine).

Toll Mfg., 341 NLRB No. 115 (2004) (Battista and Walsh held that employer violated Section 8(a)(3) by discharging employee because of her union activities; Schaumber dissented, arguing that the General Counsel failed to satisfy his initial burden and that employer satisfied its rebuttal burden)

Goer Mfg., 341 NLRB No. 105 (2004) (Meisburg and Walsh granted summary judgment against employer who unilaterally discontinued vacation pay and perfect attendance pay contrary to the terms of a collective bargaining agreement; Schaumber dissented, arguing that some contract breaches do not rise to the level of an unfair labor practice and noting that the union had other forums available to pursue its claim)

Sun Mart Foods, 341 NLRB No. 22 (2004) (Battista and Walsh held that employer committed objectionable conduct by announcing that it would remodel its grocery store with the intent to affect employees’ votes in the election; Schaumber dissented, arguing that an employer does not commit objectionable conduct by announcing a benefit that it will grant to employees regardless of the election’s outcome, even if the announcement is timed to affect employees’ votes)

City Market, Inc., 340 NLRB No. 151 (2003) (Battista and Walsh held that employer violated Section 8(a)(1) by promulgating an no-solicitation/no-distribution rule in response to union activity; Schaumber dissented, arguing that the General Counsel did not satisfy his initial burden of demonstrating that the employer was motivated by protected activity when promulgating the rule and that employer showed that it would have promulgated rule for legitimate reasons regardless of union activity)

AP Painting & Improvements, Inc., 339 NLRB 1206 (2003) (Acosta and Walsh held that employer did not make a valid offer of reinstatement to discriminatee where offer barred discriminatee from organizing on “company time”; Schaumber dissented, arguing that reinstatement offer was valid because employer clarified offer by informing discriminatee that he could organize on nonworking time)

Ferndale Foods, Inc., 339 NLRB 1194 (2003) (Acosta and Walsh granted default judgment against employer, finding that employer failed to establish good cause for not timely filing an answer; Schaumber dissented, arguing that Board should relax its standards for good cause)

Dish Network Service Corp., 339 NLRB 1126 (2003) (Acosta and Liebman held that employer violated Section 8(a)(1) by telling employees that it did not recognize union stewards; Schaumber dissented, arguing that the violation was de minimis and did not warrant a Board order because employee was not entitled to a steward at the meeting where the statement was made and because employer had history of recognizing stewards)

Glasforms, Inc., 339 NLRB 1108 (2003) (Acosta and Liebman held that employer violated 8(a)(3) by discharging employee for refusing to sign revised job description that included additional duties where employer was motivated by union animus; Schaumber dissented, finding that employer satisfied rebuttal burden of showing that it would have discharged employee regardless of union activity)

Nations Rent, Inc., 339 NLRB 830 (2003) (Battista and Walsh held that employer failed to comply with settlement agreement and therefore reinstated the General Counsel’s complaint; Schaumber dissented, arguing that Board should not reinstate complaint where employer substantially complied with settlement agreement and did not commit any additional unfair labor practices)

Aesthetic Designs, LLC, 339 NLRB 395 (2003) (Acosta and Liebman counted a “Yes” vote marked on a sample mail ballot instead of an official mail ballot; Schaumber dissented, arguing that the Board should not count votes cast on anything other than official ballots)

Double D Construction Group, 339 NLRB 303 (2003) (Acosta and Liebman held that judge abused his discretion by discrediting a witness’s testimony solely because the witness had provided a false social security number to obtain employment; Schaumber dissented)

Patrician Assisted Living Facility, 339 NLRB 1153 (2003) (Acosta and Liebman granted default judgment against employer who failed to timely file an answer; Schaumber dissented, arguing that the Board should relax its standard for good cause)

Daimler-Chrysler Corp., 338 NLRB 982 (2003) (Acosta, Liebman, and Walsh counted ballot marked with a check in the “Yes” box with a “?” next to that box; Schaumber and Battista dissented, arguing that the ballot did not clearly express the voter’s intent)

Cases Where a Republican Board Member Adopted a More Pro-Employer Position Than Member Schaumber
Wackenhut Corp., 345 NLRB No. 53 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(5) by unilaterally removing a classification of employees from a bargaining unit; Battista dissented, arguing that the employer’s unilateral action was lawful because the respondent’s client required the respondent to use statutory supervisors to perform the work formerly performed by the eliminated classification)

Ctr. Serv. Sys. Div., 345 NLRB No. 45 (2005) (Schaumber and Liebman held that employer violated Section 8(a)(1) by soliciting employee grievances in a manner that interfered with their Section 7 activities; Battista dissented, arguing that the interrogation did not interfere with protected activity)

Oak Hill Funeral Home, 345 NLRB No. 35 (2005) (Schaumber and Liebman upheld a union’s election victory, finding that the union did not taint the election by circulating to employees a photocopied sample ballot that contained a handwritten “X” marked in the box for the union; Battista dissented, arguing that the sample ballot had a reasonable tendency to mislead employees into thinking that the Board favored the union) (Importantly, Schaumber noted that, in an appropriate case, he would consider adopting a bright-line rule that parties who circulate altered sample ballots must include a clear disclaimer on it. Such a rule would generally benefit employers.)

Endicott Interconnect Technologies, Inc., 345 NLRB No. 28 (2005) (Schaumber and Liebman held that an employee engaged in protected activity when he criticized his employer in a newspaper and on a website and that employer violated Section 8(a)(3) by discharging him because of the criticism; Battista dissented, arguing that the employee lost the Act’s protection because his comments failed to reference the existence of a labor dispute and because his statements were disloyal to the employer)

675 West End Owners Corp., 345 NLRB No. 27 (2005) (Schaumber and Liebman ordered the respondent-employer to pay litigation costs to the charging party and to the General Counsel as a result of the respondent-employer's bad-faith refusal to follow the ALJ's instructions regarding subpoenas; in dissent, Battista declined to reach the issue of the whether the Board has power to award litigation costs, noting that the employer’s bad-faith litigation tactics were cognizable under a Board rule addressing attorney misconduct)

Sterling Fluid Systems (USA), Inc., 345 NLRB No. 20 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(3) by: (1) requiring former strikers to sign a preferential rehire list; (2) granting a recall preference to crossover employees by placing them on the recall list ahead of former strikers; and (3) granting a recall preference to former strikers who personally signed the recall list over former strikers who did not personally sign the list; Battista dissented on all three points, arguing that the employer’s first-come, first-served recall system was rational) (counts as 3 occasions)

Abramson, LLC, 345 NLRB No. 8 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(1) by coercively interrogating an employee about his support for the union; Battista dissented, arguing that the employer’s interrogation was not coercive) (separately, Schaumber and Liebman held that the employer violated Section 8(a)(1) by predicting to employees that it would be more difficult for it to get work if they elected the union because most contractors do not want union workers on the job; Battista dissented, arguing that the employer’s conversations with two contractors provided an objective factual basis for the prediction) (counts as 2 occasions)

Palms Hotel & Casino, 344 NLRB No. 159 (2005) (Schaumber and Liebman held that an employer violated Section 8(a)(1) by maintaining a handbook rule prohibiting employees from “loitering in company premises before or after working hours”; Battista voted to find no violation, arguing that employees would not reasonably read a prohibition on “loitering” as encompassing Section 7 activity)

Mercy Sacramento Hospital, 344 NLRB No. 93 (2005) (Schaumber and Liebman found that the Union’s petitioned-for unit was appropriate where it included all skilled maintenance workers at one of the employer’s four hospitals; Battista dissented, arguing that the only appropriate unit must include skilled maintenance workers at all four facilities).

St. Vincent Hospital, 344 NLRB No. 71 ((2005) (Schaumber and Liebman held that two employees did not commit objectionable conduct when they entered the voting booth together; Battista dissented, arguing that the employees compromised the secrecy of their ballots)

Albertson's, 344 NLRB No. 141 (2005) (Schaumber and Liebman held that employer violated Section 8(a)(1) by informing an employee that it would soon split up her and another employee who had engaged in protected activities; in dissent, Battista noted that the Board unanimously found that the employer violated Section 8(a)(1) by splitting up the two employees and argued that it was superfluous to find that the statement also violated Section 8(a)(1))

Avery Heights, 343 NLRB No. 128 (2004) (Schaumber and Walsh held that an employer violated Section 8(a)(3) by discharging three strikers, relying on the judge’s factual finding that they committed no picket-line misconduct; in dissent, Battista voted dismiss the allegation, finding that the General Counsel failed to satisfy his burden of showing that the three strikers did not commit the misconduct)

Hialeah Hospital, 343 NLRB No. 52 (2004) (Schaumber and Liebman held that employer violated Section 8(a)(3) by removing ping-pong table in retaliation against employees’ union activities; Battista dissented, arguing that the Board should find no violation because the ping-pong table had disrupted the workplace and supervisor had already decided that table should be removed before the union campaign started)

Toma Metals, Inc., 342 NLRB No. 78 (2004) (Schaumber and Liebman found that employer violated Section 8(a)(5) by recalling laid-off employees without giving adequate notice and an opportunity to bargain to the union; Battista dissented, arguing that the union waived its right to bargaining because it had notice that such recalls would occur and it nevertheless failed to demand bargaining)

Kelly Bros. Sheet Metal, Inc., 342 NLRB No. 9 (2004) (Schaumber and Walsh held that employer violated Section 8(a)(1) when manager told employees “he could afford to keep us working year-round right now but if we went union, he couldn’t keep us working because there wasn’t [sic] that many union jobs around”; Battista dissented, arguing that the manager’s statement was not an unlawful threat of retaliation but rather a lawful prediction of negative economic consequences of unionizing)

Sceptor Ingot Castings, Inc., 341 NLRB No. 134 (2004) (Schaumber and Walsh ordered employer to make employees whole after it unilaterally required them to contribute to health care premiums; the majority did not offset a wage increase that employer granted simultaneously with the unilateral change; Battista dissented, arguing that Board should offset the wage increase)

International Protective Services, Inc., 339 NLRB 701 (2003) (Schaumber and Walsh held that employer violated Section 8(a)(5) by refusing to furnish information requested by the union; Battista dissented, arguing that union’s bad-faith bargaining suspended the employer’s statutory duty to furnish relevant information)

Stage Employees IASTE Local 7, 339 NLRB 214 (2003) (Schaumber and Walsh refused to order respondent-union to promulgate written criteria for operating its hiring hall as remedy for union’s hiring hall violation; Acosta dissented, arguing that a proper remedy should include such an order)

Two NLRB Members Refuse to Endorse Passavant Standard for Evaluating an Employer’s Attempt to Cure an Unfair Labor Practice

2005-06-22T09:42:00.000-04:00

Under the NLRB’s seminal case of Passavant Memorial Area Hospital, 237 NLRB 138 (1978), an employer can “cure” its unfair labor practice by repudiating it. To be effective under Passavant, the employer’s repudiation must be timely, unambiguous, specific in nature to the coercive conduct, free from other proscribed conduct, adequately publicized to the employees involved, not followed by other proscribed conduct, and accompanied by assurances to employees that the employer will not interfere with the exercise of their rights under Section 7 of the Act. Id. at 138-39; Community Action Comm’n of Fayette County, 338 NLRB 664, 667 n.12 (2002). Thus, Passavant places a heavy burden on employers that wish to cure their violations and thereby avoid liability.

On June 16, the Board issued a decision in which Chairman Battista and Member Schaumber declined to endorse all of Passavant’s requirements for an effective cure. Claremont Resort & Spa, 344 NLRB No. 105 (2005). The employer in Claremont Resort & Spa maintained a rule prohibiting employees from engaging in “negative conversations” about coworkers or managers. Three months after implementing the rule, the employer issued a notice to employees which set forth their Section 7 rights and further stated that “We wish to make it clear that our suggestion concerning negative conversations was limited to personal attacks unrelated to business considerations or issues and that we fully recognize and have repeatedly acknowledged your right to discuss Union matters at times and in circumstances that are consistent with our lawful no-solicitation policies.”

The Board unanimously found that the employer violated Section 8(a)(1) by maintaining the rule that prohibited employees from engaging in negative conversations about coworkers or managers. All three Members agreed that the employer failed to cure the violation by later notifying employees that it did not intend its rule to prohibit them from discussing union matters. In so holding, a two-Member majority (Chairman Battista and Member Schaumber), stated that they “do not necessarily endorse all the elements of Passavant.” 2005 WL 1452400, at *1. “[W]hile not passing on all of the aspects of Passavant,” id., the majority found that the employer’s later notice was inadequate because it failed to assure employees that the rule permitted all discussions protected by Section 7 and not merely discussions about union matters.

In a footnote, Member Liebman stated that she agreed with the administrative law judge’s application of Passavant.

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

NLRB Holds that the Harborside Applies Retroactively

2005-05-23T18:14:00.000-04:00

In December 2004, the NLRB reversed precedent and held that a supervisor commits objectionable conduct (i.e., conduct that will invalidate an election) if she asks employees to sign union authorization cards, absent mitigating circumstances. Harborside Healthcare, Inc., 343 NLRB No. 100 (2004) (overruling Millsboro Nursing, 327 NLRB 879 (1999)).

On May 17, 2005, a divided Board held that Harborside’s rule against supervisory card solicitation applied retroactively to conduct that predated Harborside. SNE Enterprises, Inc., 344 NLRB No. 81 (2005). The events in SNE Enterprises occurred before the Board issued its Harborside decision. During an organizing campaign, two supervisors asked employees to sign authorization cards. The union later won the election. The employer alleged that the supervisors tainted the election by soliciting authorization cards. Applying then-current law, a regional director upheld the union’s election victory, finding that the supervisory card solicitation was not objectionable.

Reviewing the regional director’s decision, the Board majority held that Harborside’s new rule applies retroactively to supervisory card solicitation that occurred before the Board issued Harborside. The majority, Chairman Battista and Member Schaumber, first claimed that the Board had already given retroactive application to the new rule in Harborside itself. The majority then explained that the Board normally gives retroactive effect to new rules unless doing so would cause “manifest injustice.” Factors relevant to determining whether retroactive application of a new rule would cause manifest injustice include: (1) the extent to which parties relied on preexisting law; (2) the effect of retroactivity on the accomplishment of purposes of the Act; and (3) any particular injustice arising from retroactive application. Weighing those factors, the majority found that retroactive application of Harborside’s rule would not cause manifest injustice. Id., slip op. at 1.

First, the majority noted that the record contained no evidence that the supervisors at issue actually relied upon the Board’s pre-Harborside law. Second, the majority found that retroactive application would not significantly prejudice any party. Retroactive application would, at worst, require the Board to hold a new election and the union to conduct another campaign. The majority thought that an order requiring a new election is not nearly as burdensome as an order imposing backpay liability and requiring reinstatement. The majority found that “to the extent that the Union may be harmed, we believe that the statutory interest in protecting employees’ Section 7 rights under the Act and assuring free and fair elections outweigh any injustice resulting from the retroactive application of the Harborside standard.” Consequently, the majority remanded the case back to the regional director to evaluate the employer’s objections under Harborside’s new rule.

Member Liebman dissented. She argued that the Board would cause manifest injustice if it applied Harborside’s new rule retroactively. She emphasized that Harborside overruled precedent on the card solicitation issue and therefore argued that retroactive application would implicate reliance interests. She further argued that applying Harborside retroactively to invalidate election victories would inflict significant harm on unions. Liebman asserted that a Board certification is a valuable legal interest and the most important asset to unions under the Act. She explained that “[s]tripping a union of its electoral victory, and requiring it to expend the resources to conduct another electoral campaign (and perhaps pursue related legal proceedings), is a substantial burden.” She contended that there was no meaningful distinction between the burdens imposed by an order invalidating an election and an order imposing monetary or other legal liability. Thus, Liebman found that the relevant factors weighed in favor of finding “manifest injustice” and against retroactive application of Harborside.

Finally, Liebman challenged the majority’s assertion that Harborside itself applied the new rule retroactively:

"In fact, the new rule was not actually applied by the full majority in Harborside itself. One member of the three-member majority (Member Meisburg) did not find that the supervisor at issue in that case actually solicited any authorization cards from any unit employees she supervised, and thus he did not rely on that particular conduct in voting to set aside the election. Thus, a majority of the Board did not in fact apply this new principle retroactively. My colleagues insist that, despite Member Meisburg’s individual position, the 'standard set forth in Harborside' was applied retroactively. But had supervisory card solicitation been the only issue presented, there would have been no majority to set aside the election there and no retroactivity issue."

Id., slip op at 3 n.1.

President Bush Nominates Dennis P. Walsh to Serve on the NLRB

2005-05-05T14:03:00.000-04:00

On April 27, 2005, President Bush nominated Dennis P. Walsh, a Democrat, to fill one of two vacant seats on the National Labor Relations Board. He is nominated to serve a term ending December 16, 2009. Walsh served on the NLRB from December 2000 to December 2001 and again from December 2002 to December 2004.

During his time at the NLRB, Walsh demonstrated that he is a mainstream Democrat who consistently adopts pro-union interpretations of the Act when choosing between competing, reasonable alternative interpretations. Walsh dissented from each of the major decisions issued by his Republican colleagues. See Harborside Healthcare Inc., 343 NLRB No. 100 (2004); Crown Bolt Inc., 343 NLRB No. 86 (2004); Oakwood Care Center, 343 NLRB No. 76 (2004); Brown University, 342 NLRB No. 42 (2004); Dana Corp., 341 NLRB No. 150 (2004); IBM Corp., 341 NLRB No. 148 (2004).

Walsh also demonstrated that he will apply precedent even when he disagrees with it. Ingram Barge Co., 336 NLRB 1259, 1259 n.1 (2001); Ark Las Vegas Corp., 335 NLRB 1284, 1284 n.2 (2001).

Walsh and fellow Democrat Wilma Liebman agreed with each other in the vast majority of cases. This cannot be overstated. Nevertheless, Walsh and Liebman sometimes disagreed. The cases in which they disagreed provide insight into Walsh’s jurisprudence. I found 18 such cases. Walsh’s position was more pro-union (or pro-GC) than Liebman’s position in 14 of these 18 cases. Though it is difficult to generalize, I think that the cases below show that Walsh is slightly more likely than Liebman to hold against an employer on the merits, and is somewhat more likely than Liebman to award extraordinary remedies.

Armstrong Machine Co., 343 NLRB No. 122 (2004) (Liebman and Battista held that employer acted lawfully when telling employees that he thought they were supervisors and therefore ineligible to vote in election; Walsh dissented, arguing that employer’s statement was unlawfully coercive).

Overnite Transportation Co., 343 NLRB No. 134 (2004) (Liebman and Battista held that employer lawfully terminated employees who did not disclose their felony convictions on job applications; Walsh dissented, arguing that terminations violated 8(a)(3) because employer failed to satisfy its Wright Line rebuttal burden)

Wilshire at Lakewood, 343 NLRB No. 23 (2004) (Liebman and Battista held that employer did not violate 8(a)(1) by maintaining handbook rule that prohibited employees from walking off the job without supervisor’s permission; Walsh dissented, arguing that handbook rule chilled employees from engaging in protected strike activity and therefore violated the Act)

Fantasia Fresh Juice Co., 339 NLRB 928 (2003) (Liebman and Battista awarded EAJA fees to employer because they found that the General Counsel’s exceptions were not substantially justified; Walsh dissented, arguing that GC’s position was substantially justified)

Outdoor Venture Corp., 336 NLRB 1006 (2001) (Liebman and Hurtgen held that employer did not violate 8(a)(3) by refusing to reinstate strikers because, even assuming that employer engaged in unlawful direct dealing, such direct dealing did not prolong strike; Walsh dissented and would have remanded for factual findings to determine whether employer engaged in direct dealing because he thought such direct dealing, if it occurred, might have prolonged the strike)

Yuker Construction Co., 335 NLRB 1072 (2001), (Liebman and Truesdale held that employer acted lawfully in discharging employees for engaging in unprotected conversation; Walsh, dissenting, found conversation to be protected and hence found that employer violated Section 8(a)(3) by discharging employees)

Lee Lumber & Building Material Corp., 334 NLRB 399, 405 n.54 (2001) (Liebman, Hurtgen, and Truesdale placed burden on General Counsel to show that employer did not bargain for a reasonable time before employee disaffection petition circulated; Walsh, dissenting, would place burden on employer to show that it bargained for a reasonable time before disaffection petition circulated)

The Bakersfield Californian, 337 NLRB 296 (2001) (Walsh and Hurtgen found that employer did not violate 8(a)(5) when it announced implementation of McClatchy-type merit pay program because employer did not actually grant any increases; Liebman dissented, arguing that announcement violated 8(a)(5))

E.S. Sutton Realty Co., 336 NLRB 405 (2001) (Liebman and Hurtgen reversed ALJ’s credibility determination to find that employer violated Section 8(a)(3) by refusing to consider for hire and refusing to hire union applicants; Walsh, dissenting, would not overturn ALJ’s credibility determination and consequently would dismiss the complaint).

Local One, Amalgamated Lithographers of America (Metropolitan Lithographers Ass’n), 366 NLRB 801 (2001) (Liebman and Truesdale would find that union violated Section 8(b)(1) by refusing to refer one of its members to an employer; Walsh, dissenting, would find no violation because he thought that union had a neutral reason for its refusal to refer).

Allied Production Workers Local 12 (Northern Engraving Corp.), 337 NLRB 16 (2001) (Walsh and Hurtgen held that union violated 8(b)(1) by deducting dues from non-members’ paychecks; Liebman, dissenting, would find no violation because she interpreted nonmembers’ checkoff authorizations as clearly authorizing deduction of dues even after employees resigned union membership)

Smithfield Packing Co., 344 NLRB No. 1, slip op. at 14 n.61 (2004) (Liebman and Battista issued limited extraordinary remedies; Walsh would have ordered even more extraordinary remedies)

Arandess Mgmt Co., 337 NLRB 245 (2001) (Liebman and Hurtgen refused to require employer to make pension contributions on behalf of replacement workers as remedy for E’s unlawful refusal to apply CBA to them; Walsh would require employer to make contributions)

Postal Service, 339 NLRB 1162, 1163 n.4 (2003) (Liebman and Acosta did not require employer to read Notice aloud to employees as remedy for employer’s violations; Walsh would require employer to read Notice)

The Boeing Co., 337 NLRB 152 (Liebman and Hurtgen agree with employer that petitioned-for unit was not appropriate; Walsh dissented, arguing that unit was appropriate)

Temptations, 337 NLRB 376 (2001) (Liebman and Hurtgen held that Board lacked jurisdiction over strip club because strippers’ tips are not properly included when determining whether an employer meets the Board’s monetary jurisdictional standards; Walsh, dissenting, would assert jurisdiction by including tips)

Verizon Information Systems, 335 NLRB 558 (2001) (Liebman and Hurtgen dismissed Union’s election petition because Union previously invoked arbitration agreement to resolve representation dispute; Walsh would have held election, arguing that Union did not clearly and unmistakably waive right to Board election)

Postal Service, 340 NLRB No. 166 (2003) (Walsh and Battista set aside board settlement and reinstated complaint against respondent-union for undermining settlement agreement; Liebman would not reinstate complaint)

The nominations of Dennis Walsh and Ronald Meisburg are now pending in the Senate. General Counsel Arthur F. Rosenfeld’s term expires in less than one month. Member Peter C. Schaumber’s term expires on August 27, 2005. The Senate could confirm Walsh and Meisburg as a package and wait until September to confirm a package to fill the Rosenfeld and Schaumber vacancies. Alternatively, the Senate could wait until September to confirm a four-nominee package. Unfortunately, if the Senate waits until September, the Board will no longer have a quorum, and case processing will screech to a halt.

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

2005-03-18T10:46:00.000-05:00

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

2005-03-01T15:21:00.000-05:00

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.

Analyzing Ambiguous Statements

2005-02-28T18:13:00.000-05:00

Section 8(a)(1) prohibits employers from making coercive statements to employees about their union activity. Employers occasionally utter ambiguous statements that have several reasonable interpretations, some coercive and some not. Recently, the Board split over how to analyze these ambiguous statements. Joseph Chevrolet, Inc., 343 NLRB No. 2 (2004).

In Joseph Chevrolet, the employer terminated a shop steward after he misrepresented that he performed some work that he had not. The employer told the discharged employee “your job got fucked up at the bargaining table.” The General Counsel issued a complaint alleging that this statement violated Section 8(a)(1) by linking the employee’s discharge to his union activity.

The Board majority (Members Liebman and Walsh) found that the employer’s statement coercively linked the employee’s discharge to union activity and that it therefore violated Section 8(a)(1). In dissent, Member Schaumber found that the statement was lawful because it was ambiguous and susceptible to noncoercive interpretations. He noted that the collective bargaining agreement expressly authorized the employer to terminate employees for charging a customer for a repair not made. Member Schaumber thought that it was reasonable to interpret the employer’s statement -- that the employee’s “job got fucked up at the bargaining table” -- as communicating that the employee lost his job for committing an offense worthy of discharge under the collective bargaining agreement. Member Schaumber stated that “since the statement’s meaning is ambiguous and allows for lawful interpretations, the General Counsel has not met his burden of establishing by a preponderance of the evidence that making the statement violated Section 8(a)(1) of the Act.” Id. at 4 (emphasis added). Member Schaumber did not deny the existence of a reasonable, coercive interpretation of the employer’s statement.

In response to the dissent, the majority explained that “[t]he test of whether a statement is unlawful is whether the words could reasonably be construed as coercive, whether or not that is the only reasonable construction.” Under this rule, the majority found that the statement violated the Act, even accepting Member Schaumber’s position that the statement was ambiguous and susceptible to a reasonable, noncoercive interpretation.

Member Schaumber espoused the most pro-employer rule of the following three possible alternatives:

1. An ambiguous statement violates Section 8(a)(1) if it has at least one reasonable, coercive interpretation.

2. An ambiguous statement violates Section 8(a)(1) if its most reasonable interpretation is coercive (among competing reasonable interpretations).

3. An ambiguous statement is lawful if it has at least one reasonable, noncoercive interpretation.

I think that the Board majority wisely employed the most pro-General Counsel of these three alternatives. Where multiple reasonable interpretations of an ambiguous statement exist, we cannot be sure that employees will adopt a noncoercive interpretation over a coercive interpretation. Some employees may hear the coercive message. Thus, to ensure that employers do not interfere with Section 7 rights (purposefully or otherwise), the Board is wise to use the pro-General Counsel rule in Joseph Chevrolet.

In advocating rule set forth in Joseph Chevrolet, I emphasize that the remedy for violating Section 8(a)(1) is a cease-and-desist order. In such an order, the Board directs the guilty employer to stop making ambiguous statements that a reasonable employee could interpret as coercive. In other words, the Board tells the employer to be more precise when making its statements: “If you intend to communicate a noncoercive message, do a better job of it.”

One might argue that Joseph Chevrolet rule will chill employers from communicating valuable messages. An employer might hold its tongue instead of making a valuable comment out of fear that the Board might find some reasonable, coercive interpretation of its statement. I find such an argument unpersuasive for several reasons. First, the cease-and-desist order (“stop doing that”) is not much of a deterrent. Thus, if an employer has some valuable message to communicate, it is not likely to hold back for fear of being told to “stop doing that.” Second, the Board is not quick to manufacture coercive interpretations of seemingly valuable employer statements. Third, these kinds of statements are made, of course, by people: people who speak off the cuff and who are likely to be unaware of the Joseph Chevrolet rule. Thus, I highly doubt that the rule will have any significant chilling effect.

On the other hand, a contrary rule (such as the rule that an ambiguous statement is lawful if it is susceptible to a lawful interpretation) creates an opportunity for employers to use ambiguous language to communicate a coercive message. The potential for harm that this rule creates is greater, in my mind, than the potential chilling that might occur under Joseph Chevrolet.

Of course, employers might also be worried that such an 8(a)(1) violation will be used to support a Gissel bargaining order or to infer that a contemporaneous discharge was unlawfully motivated. I suggest that the Board can give appropriate (read “little”) weight to this type of violation when analyzing these types of issues.

Announcing Benefit Improvements to Employees Outside the Bargaining Unit

2005-02-11T14:59:00.000-05:00

The Seventh Circuit held that an employer can violate Section 8(a)(1) by announcing to eligible voters that it is granting a new benefit to non-unit employees where the employer intends to influence an election. NLRB v. Curwood Inc., No. 03-3972, 2005 WL 295636 (7th Cir. Feb 09, 2005). In Curwood, the union filed an election petition to represent production workers, but not maintenance workers. Later, the employer announced that it was going to improve the maintenance workers’ pensions. The Board found that the employer violated Section 8(a)(1) – which prohibits employers from interfering with employees’ rights to form, join, or assist unions – by making the announcement.

The court recognized that an employer can interfere with employees’ right to join unions, in violation of Section 8(a)(1), by announcing to them that it is improving the benefits of employees outside the proposed unit. The court explained, however, that motive is critical. An employer will violate the Act by making the announcement only if the employer’s purpose is to influence the eligible voters. The court remanded the case to the Board to make a determination about the employer’s motive. Thus, Curwood shows that some 8(a)(1) violations turn upon an employer’s motive.

As a side note, at the oral argument, Judge Easterbrook expressed his disapproval of the holding in NLRB v. Exchange Parts Co., 375 U.S. 405 (1964), that an employer can violate Section 8(a)(1) by granting benefits to employees in the proposed unit for the purpose of influencing the election result:

Easterbrook: Your real problem is that you don't agree with Exchange Parts.
Employer's lawyer: Oh, I actually do.
Easterbrook: You do?
Employer's lawyer: Yes.
Easterbrook: Because I don't. I think it's a stupid decision. If I were you I would be arguing against it and trying to set up a case where I would bet there is a decent chance that the Supreme Court would overrule it. But, no, if you agree with Exhange Parts, that's fine.

Streaming audio of the argument is at:
http://www.ca7.uscourts.gov/farg/arg.fwx?caseno=03-3972&submit=showdkt&yr=03&num=3972

NLRB Expresses Concerns Over Standard Remedy for Unlawful Discharge in the Construction Industry

2005-02-10T19:37:00.000-05:00

The Bush Board recently signaled “concerns” over precedent holding that the standard remedy for unlawful discharge in the construction industry is reinstatement and backpay. Cheney Construction, Inc., 344 NLRB No. 9 (2005).

The construction industry is unique because employers frequently hire employees to work on a single construction project. Employees often work on a project until it ends and then seek work from another employer. Sometimes, however, a construction-industry employee will move to her employer’s next project.

The Board has grappled with the question of the appropriate remedy for unlawful discharge in the construction industry. In Dean General Contractors, 285 NLRB 573 (1987), the Board set forth the current law. The Board majority held that a standard remedial order will require a construction-industry employer to reinstate a discriminatee and pay him backpay. The majority explained that an employer will have an opportunity at the compliance stage of litigation to prove that it would not have transferred the discriminatee to a new project. If the employer makes that showing, then reinstatement is inappropriate and backpay will terminate on the date that the discriminatee’s project ended.

The dissent in Dean General argued for a presumption that a discriminatee in the construction industry was hired only for a single project. Consequently, the dissent would place the burden on the General Counsel to prove that a discriminatee would have continued to work for the employer after the project ended. Only if the General Counsel could satisfy this burden of proof would the dissent order reinstatement and backpay beyond the date of the project. The dissent indicated that the General Counsel could make this showing at the hearing on the merits or at the compliance stage (provided that the General Counsel inform the ALJ at the original hearing that it intended to litigate the issue at the compliance stage).

Thus, in Dean General, the majority and the dissent disagreed about which party bears the burden of proving continued employment. The majority placed the burden on the employer to show that the discriminatee would not have continued employment beyond the project. If an employer fails to satisfy its burden, the Board order will require reinstatement and backpay. In contrast, the dissent in Dean General would have placed the burden on the General Counsel to prove that the discriminatee would have continued employment beyond the project. If the General Counsel fails to satisfy his burden, the Board order will not require reinstatement and will limit backpay to the end of the completed project.

In Cheney Construction, Chairman Battista and Member Schaumber recognized that Dean General represents current Board law. However, they expressed concerns “whether that case was correctly decided.” 343 NLRB No. 9, slip op. at 1 fn.9. In the absence of a third Republican Board Member, the Board applied Dean General.

Update on NLRB’s Position on Deferring Information-Request Cases to Arbitration

2005-02-10T15:32:00.000-05:00

On January 28, I noted that the Board has a longstanding policy against deferring information-request cases to arbitration and identified a case in which Chairman Battista and Member Schaumber refused to endorse that policy. See New Island Hospital, 344 NLRB No. 3 (2005). Well, on February 4, Chairman Battista and Member Schaumber made clear that they would like to overrule that longstanding policy when they have a third Member’s vote to do so. SBC California, 344 NLRB No. 11 (2005). By tradition, the NLRB requires three votes to overrule precedent. Ingram Barge Co., 336 NLRB 1259, 1259 fn.1 (2001); Redway Carriers, Inc., 274 NLRB 1359, 1359 fn.4 (1985). In accordance with this tradition, Chairman Battista and Member Schaumber applied current law in SBC California even though they disagreed with it.

As you can see, the two Board vacancies work to the Democrats’ advantage. Until a third Republican is placed on the Board, there will be no change in the law, provided that the Board sticks with tradition.

NLRB Holds That Employers May Lockout Full-Term Strikers While Allowing Nonstrikers and Crossovers to Remain Working

2005-02-09T17:15:00.000-05:00

In Midwest Generation, the Board held that an employer did not violate Section 8(a)(3) -- which prohibits employers from discriminating against employees to discourage union membership -- when it locked out full-term strikers while allowing nonstrikers and crossovers to continue working. 343 NLRB No. 12 (2004). The Board found that the employer distinguished between the two groups of employees not because of union membership (or Section 7 activity), but rather because of a legitimate desire to place economic pressure where it would be most effective: on the employees who remained on strike until the union called it off.

The union and the employer in Midwest Generation were negotiating for a successor contract. The union called an economic strike in support of its bargaining demands. The vast majority of employees joined the strike. Eight employees refused to strike and remained at work (the nonstrikers). During the course of the strike, 47 striking employees crossed the picket line and returned to work (the crossovers). Eventually, the union ended the strike and made an unconditional offer to return to work. In response to the union’s offer, the employer instituted a partial lockout, refusing to let the full-term strikers return to work until the union agreed to a new collective bargaining agreement. The employer simultaneously allowing nonstrikers and crossovers to continue working.

The union filed a ULP charge, and the General Counsel issued a complaint alleging that the employer violated Section 8(a)(3) by discriminating between full term strikers on the one hand and nonstrikers and crossovers on the other.

The Board majority (Chairman Battista and Member Schaumber) held that the employer acted lawfully in discriminating between the two groups. The majority explained that a lockout violates Section 8(a)(3) only if the employer is motivated by antiunion animus. To determine whether antiunion animus motivated the employer’s partial lockout, the majority employed the framework set forth in NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Under the relevant part of that decision, the employer must first come forward with a “legitimate and substantial business justification” for its different treatment of employees. Only then must the Board’s General Counsel prove antiunion motivation. In the absence of proof of a legitimate and substantial business justification for the different treatment, the employer’s discrimination is unlawful.

The Board majority found that the employer established a legitimate and substantial business justification for its lockout: to apply economic pressure on the union to accept its bargaining demands. The majority further found that the employer established a legitimate and substantial business justification for the partial nature of its lockout: to pressure full-term strikers to abandon the union’s bargaining demands.

The Board majority then shifted the burden to the General Counsel to prove antiunion animus. The majority found that the General Counsel failed to satisfy his burden. The majority conceded that the employer discriminated between full-term strikers on one hand and nonstrikers and crossovers on the other. It found that this fact did not establish antiunion motivation. The majority explained that the employer had the legitimate motive of placing additional economic pressure on full-term strikers to achieve its bargaining goals. It was unnecessary for the employer to place similar economic pressure on nonstrikers and crossovers, argued the Board majority, because they had eschewed the strike weapon.

Member Walsh dissented. He found that the employer failed to satisfy its initial burden under Great Dane of establishing a legitimate and substantial business justification for the partial nature of its lockout. He noted that the employer tried to justify the partial nature on the ground that it was unnecessary to place economic pressure on nonstrikers and crossovers because they had eschewed the strike weapon. Walsh attacked this justification from two angles. First, he noted that the full-term strikers had also eschewed the strike weapon by terminating the strike and offering to return to work. Thus, there was no need to place particular pressure on them. Second, Walsh noted that the employer and the Board majority improperly assumed that nonstrikers and crossovers do not support the union’s bargaining demands. Walsh noted that employees may refuse to participate in a strike for reasons other than lack of support for a union’s bargaining demands. Thus, Walsh found that the employer failed to establish a legitimate reason for locking out the full-term strikers while allowing the nonstrikers and crossovers to continue working. Consequently, he voted to find that the employer violated Section 8(a)(3).

I think that Member Walsh has the better of the two arguments. The (allegedly) legitimate justification identified by the majority was the employer’s desire to place targeted pressure on those employees who support the union’s bargaining demands. The majority essentially finds that the employer legitimately assumed that full-term strikers support the union’s bargaining demands and that nonstrikers and crossovers do not (or support them to a lesser extent). This might be generally true as an empirical matter. However, exceptions to this general rule do exist. Employees may refuse to strike even though they support their union’s demands. Likewise, some employees may strike even though they do not support their union’s demands. Thus, there is not a perfect correlation between participation in a strike and support for a union’s demands or between rejection of a strike and lack of support for a union’s demands. Nevertheless, the majority’s decision allows employers to discriminate between employees based on their protected activity because of the questionable assumption that such a correlation exists.

Round-Up of D.C. Bar Association's Discussion of Dana/Metaldyne and the Voluntary-Recognition Bar Doctine

2005-02-03T22:11:00.000-05:00

The D.C. Bar Association hosted a discussion on Dana/Metaldyne, voluntary recognition, neutrality agreements, and related topics.

As background, in Dana/Metaldyne, 341 NLRB No. 150 (2004), the Board granted review to reevaluate its long-established "voluntary-recognition bar" doctrine. Under that doctrine, a voluntarily-recognized union enjoys an irrebuttable presumption of majority support for a reasonable period of time. During that reasonable period, the Board will not process a decertification petition. Under current law, an employee who suspects that the union lacked majority support at the time of recognition cannot obtain an NLRB election. In Dana/Metaldyne, however, the Board could eliminate the voluntary-recognition bar or limit it. Various amici have urged the Board to create a window of opportunity immediately following recognition during which a petitioner could file a decertification petition with the support of some percentage of the employees (e.g., 30% or 50%).

At the discussion, Nancy Schiffer of the AFL-CIO derided the Board's decision to grant review in Dana/Metaldyne. She emphasized that the Supreme Court, the Circuit Courts, and the Board have long recognized voluntary recognition as a valid method for a union to become a bargaining representative. Schiffer argued that eliminating or limiting the recognition bar will destroy voluntary recognition. The bar insulates a newly-recognized union from the pressures associated with retaining majority support she argued. Eliminating or limiting the bar will destabilize the relationship between the union and its members and between the union and the employer. Schiffer argued that eliminating the bar would allow a minority of employees to "hijack" the process from the majority of employees who signed cards.

Chuck Cohen of Morgan Lewis brushed aside Schiffer's criticism of Dana/Metaldyne. Cohen noted that the Clinton NLRB reversed precedent on six occasions, each time creating another obstacle for employees wishing to decertify a union. These six Clinton-Board decisions cemented existing bargaining relationships and made it more difficult for employees to remove their union or switch unions. In contrast, the Bush Board is merely considering a change in one case that will make it easier for employees to remove their union or switch unions. Thus, Cohen did not really argue the merits of eliminating or limiting the voluntary-recognition bar. Instead, he essentially argued that the Bush Board is less activist than was the Clinton Board.

Ellen Farrell from the NLRB set forth the General Counsel's position on the voluntary-recognition bar. The GC is urging the Board to limit, but not eliminate, it. She said that the bar serves the legitimate function of stabilizing a new bargaining relationship. She noted, however, that coercion and fraud - however rare - can taint a card check. Accordingly, the GC urges the Board to process an election petition shortly after voluntary recognition if the following conditions are met: the petition must be filed with 30 days from the date that the employer notifies the employees that it has voluntarily recognized the union and the petition must have the support of 50% of employees. If a petitioner can obtain support from at least 50% of the employees, then the Board is justified in questioning the card check's validity.

UPDATE:

The panel also discussed neutrality agreements. The generic term "neutrality agreement" covers a host of different types of provisions. A basic neutrality agreement requires the employer to remain silent about the merits of unionization during an organizing campaign. Other neutrality agreements merely obligate the employer (and sometimes the union) from saying anything "negative" about the other side. More detailed neutrality agreements may also give a union access to a facility and employees' names, addresses, and phone numbers. They may also limit the duration of the organizing drive and prohibit a union from picketing. Frequently, parties sign a card-check agreement along with their neutrality agreement.

Nancy Schiffer praised neutrality agreements as a way to bypass slow NLRB election processes. She suggested that employers sign neutrality agreements because they want to limit the duration of a campaign, prevent picketing, and avoid NLRB litigation. She suggested that neutrality agreements are a vital part of today's union movement.

Chuck Cohen criticized neutrality agreements because they "silence" one party and prevent employees from hearing the employer's legitimate argument against unionization. He suggested that employers sign neutrality agreements because of union leverage (through its bargaining power at another facility, a corporate campaign, or its government contacts). Cohen implied this leverage was illegitimate during his critique of neutrality agreements.

An audience member picked up on Cohen's criticism and asked Ellen Farrell whether neutrality agreements constitute unlawful assistance in violation of Section 8(a)(2). She replied that employers have no statutory duty to present employees with an argument against unionization. Thus, an employer's voluntary decision to enter into a neutrality agreement and remain silent is not unlawful assistance, she argued. She did note that where two rival unions are campaigning, the employer has a duty to treat them equally.

The panel next discussed "neutrality-plus agreements," in which the parties simultaneously negotiate a neutrality agreement and some substantive terms of a CBA that will apply if and when the union obtains majority support. Ellen Farrell stated that the GC has issued a complaint in a case alleging that an employer and a union violated the Act when they signed a neutrality-plus agreement. That agreement included a no-strike/no-lockout clause, an interest-arbitration clause, a minimum-duration clause, and a clause limiting the amount the employer would spend on health care. Farrell gave the GC's view that the neutrality-plus agreements are unlawful because they give the (minority) union special status. In fact, she argued that the neutrality-plus agreement constituted an unlawful grant of recognition even though the substantive terms would not kick in until the union obtains majority status. Farrell distinguished lawful after-acquired stores clauses (see post below) on the ground the unions in those cases have majority status at Facility A and negotiate the neutrality-plus agreement (to apply at Facility B) on behalf of the employees at Facility A, who are "vitally affected" by the terms and conditions at Facility B. (Confusing, I know.)

In sum, the rules governing the voluntary-recogntion bar and neutrality agreements may change. The Bush Board has several cases pending that will decide some of these issues. Stay tuned.

NLRB Declines to Endorse Its Longstanding Policy of Not Deferring Information-Request Cases to Arbitration

2005-01-28T10:35:00.000-05:00

In New Island Hospital, 344 NLRB No. 3 (2005), the Board refused to defer an information-request case back to arbitration because of the Arbitrator’s delay in resolving it, but refused to endorse its longstanding policy against deferring all information-request cases.

In New Island Hospital, a union filed a grievance alleging that the employer breached their CBA by failing to implement staffing guidelines (set forth in the CBA) that required a minimum number of nurses per patient. The union demanded arbitration after the employer failed to resolve the grievance to its satisfaction. Later, the union asked the employer for information on nurse/patient ratios to help make its claim in the arbitration. The employer refused, so the union served an arbitral subpoena on the employer for that information. In response, the employer moved the Arbitrator to quash the subpoena. The Arbitrator reserved judgment on the motion. He also postponed the arbitration hearing due to his illness.

After the Arbitrator informed the parties that he would delay his ruling on the employer’s motion to quash, the union filed a ULP charge with the NLRB. The General Counsel issued a complaint alleging that the employer violated Section 8(a)(5) by refusing to furnish the information to the union. The employer moved the ALJ to defer the case to arbitration. The employer argued that the union had chosen the arbitration route to resolve its information-request dispute, and that the union was stuck with its procedural choice. The judge denied the employer’s motion to defer, citing the Board’s longstanding policy against deferring information-request cases. He then found that the employer violated the Act by refusing to furnish the requested information. The employer excepted to the ALJ’s decision.

The Board agreed with the ALJ’s decision not to defer, but for a different reason. The Board majority (Chairman Battista and Member Schaumber) explained that it would be inappropriate to defer the information-request case back to the Arbitrator because over 10 months had elapsed since the Arbitrator was first asked to rule on the issue and he had not yet resolved it. Importantly, the majority stated that “[w]e find it unnecessary to pass on whether, absent such a delay, the Board properly should defer an information-request allegation to arbitration where a charging party has invoked the grievance-arbitration process and has also filed a charge with the Board.” In contrast, Member Liebman concurred on the ground that the Board never defers information-request cases. She did not rely on the Arbitrator’s delay.

The majority’s decision not to endorse its longstanding policy creates uncertainty regarding the circumstances in which the Board will hear or defer information-request allegations. Back in 2002, Member Bartlett stated in a concurring opinion that he would defer all information-request claims to arbitration if the information relates to an alleged contract breach -- even if the charging party never invoked the grievance-arbitration process. Phoenix Coca-Cola Bottling Co., 338 NLRB 498, 499 fn.2 (2002). Member Bartlett’s rule would shift the costs of litigating these disputes from the government to the unions. Undoubtedly, unions would end up with less information.

Unions would likely receive less information than they currently do even if the NLRB were to adopt a rule (less harsh than Member Bartlett’s) channeling information-request claims back to arbitration where the charging party demands arbitration and later goes to the NLRB. Unions might take this course of action for several reasons (either because they anticipate that the arbitrator will not require the employers to turn over all relevant information or because they run out of litigation resources). Under a new rule, the Board might turn unions away once they have invoked the grievance-arbitration process. We must wait and see what tack the Bush Board takes.

President Bush Nominates Ronald E. Meisburg to the NLRB

2005-01-25T13:38:00.000-05:00

On January 24, 2005, President Bush nominated Ronald E. Meisburg, a Republican, to fill one of two vacant seats on the National Labor Relations Board. He is nominated to serve a term ending August 27, 2008. Meisburg recently finished a recess appointment at the Board.

During his recess appointment, Member Meisburg consistently sided with his Republican colleagues over his Democratic counterparts in cases involving important policy issues. See Harborside Healthcare Inc., 343 NLRB No. 100 (2004) (articulating standard for prounion supervisory conduct and finding that supervisors engaged in objectionable conduct by soliciting authorization cards); Crown Bolt Inc., 343 NLRB No. 86 (2004) (refusing to presume dissemination of plant closure threats); Oakwood Care Center, 343 NLRB No. 76 (2004) (overruling Clinton Board decision on user and user/supplier employee units); Brown University, 342 NLRB No. 42 (2004) (holding that graduate assistants are not statutory employees); Dana Corp., 341 NLRB No. 150 (2004) (granting review to determine whether to maintain the voluntary recognition bar); IBM Corp., 341 NLRB No. 148 (2004) (holding that nonunion employees are not entitled to a coworker at investigatory meeting).

On the other hand, Member Meisburg was the Republican most likely to break from his party colleagues and join a Democrat to find that an employer violated the Act. These cases turned more on their facts than on an issue of law. See RC Aluminum Industries, Inc., 343 NLRB No. 103 (2004) (Meisburg and Liebman in majority finding discharge unlawful; Battista dissenting); CBS Broadcasting, Inc., 343 NLRB No. 96 (2004) (Meisburg and Walsh in majority finding that employer violated Section 8(a)(5) by refusing to bargain with one union in unit with joint representative; Schaumber dissenting); Abbott Northwestern Hospital, 343 NLRB No. 67 (2004) (Meisburg and Liebman concurring that employer violated Section 8(a)(3) by refusing to hire another employer’s striking employees; Battista dissenting); Parkview Hospital, Inc., 343 NLRB No. 13 (2004) (Meisburg and Walsh in majority finding that employer violated Section 8(a)(3) by giving union supporter a poor evaluation; Schaumber dissenting). I found only one case in which a different Republican (Battista or Schaumber) joined with a Democrat to find a violation where Meisburg dissented. Fachina Construction Co., 343 NLRB No. 98 (2004) (Battista and Liebman in majority finding that employer violated Section 8(a)(3) by discriminating against employees for engaging in protected activity; Meisburg dissenting).

Thus, Member Meisburg was the swing vote on the Board; sort of a Justice O'Connor of the the NLRB.

http://www.whitehouse.gov/news/releases/2005/01/20050124-10.html

NLRB Allows Employer to Change Past Practice on Wage Increases Without Bargaining to Impasse

2005-01-20T16:06:00.000-05:00

The Bush Board handed employers a major victory by holding that an employer did not violate Section 8(a)(5) when it changed its system of granting wage increases without first bargaining to impasse with its newly-certified union. TXU Electric Co., 343 NLRB No. 132 (2004). In every year from 1978 to 1999, the employer performed a wage review in which it considered a number of factors (e.g., market condition and employee retention). Every December, the employer granted a wage increase based on that year's wage review. The amount of the wage increase was left to the employer's discretion - there was no objective formula for reaching it.

The union won an election in February 1999 to represent some of the employer's employees. During bargaining in May 1999, the employer notified the union that it planned to conduct its annual wage review, but that it would not apply the new review to unionized employees. The employer told the union that it planned to apply the new review to nonunion employees only. The union did not expressly object. Importantly, however, the parties did not bargain to impasse or agreement by December 1999. In December 1999, the employer granted wage increases to nonunion employees under the new 1999 review (resulting in a 3.6% wage increase). In contrast, the employer applied its old 1998 review to unionized employees and paid them accordingly (resulting in a lower wage increase).

The union filed an unfair labor practice charge, and the Board's General Counsel issued a complaint alleging that the employer bargained in bad faith by changing a term or condition of employment without first bargaining to impasse.

In a 2-1 decision, the Board majority (Chairman Battista and Member Schaumber) held that the employer acted lawfully when it departed from past practice by refusing to apply the new 1999 wage review to its unionized employees. The Board found that the employer satisfied its bargaining obligation by giving the union notice of its intended change and an opportunity to bargain about it. The Board explained that:

"We agree with the concurring opinion in Daily News of Los Angeles, 315 NLRB at 1244, that where, as here, a discrete event occurs every year at a given time, and negotiations for a first contract will be ongoing at that time, an employer can announce in advance that it plans to make changes as to that event. '[T]he employer's bargaining position may be to continue the practice for that year, to modify it, or to delete it for that year.' As long as the union is given advance notice and an opportunity to bargain as to those matters, the employer can carry out the changes even if there is no overall impasse at as of the time of the change."

TXU Electric, 343 NLRB No. 132, slip op. at 4.

The Board majority explained that the anniversary date for action was fast approaching and the employer had to do something with respect to wage increases without waiting for an impasse. The Board held that an employer facing such a dilemma satisfies its bargaining obligation by giving notice and an opportunity to bargain before proceeding with the change.

Member Walsh dissented vigorously, describing the majority's holding as "a radical and unjustifiable departure from the Board's overall impasse rule." He voted to find that the employer had violated Section 8(a)(5). Walsh described the employer's wage system as having fixed aspects (criteria and timing) and discretionary aspects (the amount of the increase). He would not allow the employer to change the fixed aspects of its past practice without first bargaining to impasse. He would, however, permit the employer to take action on the discretionary aspect after giving notice and an opportunity to bargain.

I think that the dissent has the better view here. The general rule is that an employer may not change terms or conditions of employment without first bargaining to impasse or agreement. The rationale behind the impasse rule is that unilateral action prior to impasse undermines the collective bargaining process by removing issues from the bargaining table and by painting the union as impotent.

In TXU Electric, the Board has recognized an exception to the impasse rule where the term or condition of employment is a discrete, recurrent event that involves some amount of employer discretion. The majority's justification for its exception is that an employer faces a dilemma when the annual time for action rolls around. It must take some action on that date even though impasse has not occurred. Thus, the majority relies on necessity as its justification for the exception to the general impasse rule in this situation.

Member Walsh is quite right, however, to point out that the employer faces a dilemma only with respect to the discretionary aspect of its annual wage review program. Its 22-year practice provided a clear guide as to what to do regarding the fixed aspects: conduct the annual wage review using the fixed criteria and adjust wages (leaving aside amount) at the fixed time, December. The employer faced the dilemma only with respect to the amount of the wage increase. When December rolled around it had to set an amount even though it had not yet bargained to impasse or agreement. The Board majority found that the employer's dilemma as to the amount of wages privileged it to change the entire program (both fixed and discretionary aspects). In fact, the majority opinion would have allowed the employer to have entirely eliminated its wage review program ("[T]he employer's bargaining position may be to continue the practice for that year, to modify it, or to delete it for that year.").

Member Walsh persuasively argues that the employer's dilemma regarding the amount of the increase necessitates an exception to the impasse rule only as to that subject. He suggested that the dilemma does not privilege the employer to unilaterally change the fixed aspects of the past practice. In short, the exception, justified as it is by necessity, should be narrowly tailored to allow the employer to escape its dilemma but otherwise bind it to its established past practice.

TXU Electric is a significant decision. Many, if not most, employers have a system of granting wage increases on an annual basis in some discretionary amount. TXU Electric holds that newly-unionized employers do not violate Section 8(a)(5) if they provide notice and an opportunity to bargain before departing from that past practice. The employer's action in TXU Electric can have two powerful effects: it places a considerable amount of bargaining pressure on the new union, and it has the potential to foment dissatisfaction with the new union.

I will note that there is another obstacle for employers who want to respond to unionization by discontinuing a past practice of granting annual wage increases that are discretionary in amount. Section 8(a)(3) prohibits employers from discriminating to discourage union membership. In its decision, the Board noted that the General Counsel failed to argue that the employer engaged in unlawful discrimination by maintaining its wage practice for nonunion employees while changing it for union employees.

Welcome!

2005-01-12T13:05:00.000-05:00

Thanks to Phillip Wilson, who is Laboring Away at the Institute, Michael P. Fitzgibbon of Thoughts from a Management Lawyer, and George Lenard of George's Employment Blawg for kindly referring their readers to this blog.

This post presents an opportunity to describe the purpose of Labor Law Blog. This blog will focus on traditional labor law (mostly NLRA, but also RLA and public sector labor law). I plan to describe recent cases, analyze them, and discuss their practical implications for unions and employers. The Bush NLRB has recently issued some significant decisions (Brown University, IBM, Oakwood Care Center, etc.). Labor law is changing in important areas. I hope to keep labor lawyers informed of these changes. I also hope to provide some commentary. Feel free to submit comments on the posts.

Fourth Circuit Holds That Requiring Employees to Wear Union Logo is Unlawful

2005-01-11T14:24:00.000-05:00

The Fourth Circuit reversed the NLRB and held that an employer and a union violated the National Labor Relations Act by enforcing a provision in a collective bargaining agreement that required employees to wear a union logo next to the employer’s logo on their uniforms. Lee v. NLRB, 2005 WL 14896 (Jan. 4, 2005).

BellSouth and the CWA signed a collective bargaining agreement that required employees to wear a uniform displaying the CWA logo next to the BellSouth logo. Two employees who did not want to wear the CWA logo filed an unfair labor practice charge with the NLRB. The NLRB’s General Counsel issued a complaint alleging that BellSouth and the CWA violated the two employees’ statutory right to refrain from engaging in union activities.

The NLRB held that Bellsouth and the CWA acted lawfully in requiring all employees to wear uniforms bearing the twin logos. It applied a balancing test that balanced the two employees’ right to refrain from engaging in union activities against the interests of BellSouth and the CWA in conveying a positive public image via the CWA logo.

The NLRB found that the two employees had a legitimate interest in refraining from wearing the CWA logo because it implies support for the CWA. The employees’ interest was diluted by two factors. First, the NLRB explained that the presence of a union affects the degree to which an employee may engage in or abstain from union activities. Second, the CWA logo was not isolated, but rather it appeared next to the BellSouth logo. The NLRB found that the twin logos did not so much convey that the individual employee donning the uniform supported the CWA as much as it communicated that the employee was simply an employee of a unionized company. Thus, the employees’ interests were moderate.

On the other hand, the Board found some heft to BellSouth’s and the CWA’s interests in conveying an image to the public that BellSouth’s labor relations are harmonious and that its employees are well paid and highly trained. The NLRB found that the balance of interests weighed in favor of BellSouth and the CWA and against the dissenting employees. Based on this balance, the NLRB found that the collectively-bargained logo requirement was a “special circumstance” that justified any intrusion on the dissenters’ rights to refrain from union activity.

The Fourth Circuit disagreed. First, the court noted the precedent that holds that employees have a Section 7 right to wear union insignia absent special circumstances. The court found a reciprocal right to refuse to wear union insignia, absent special circumstances, from Section 7’s “right to refrain” language. The court then examined BellSouth’s and the CWA’s purported special circumstance for prohibiting employees from refusing to wear the CWA logo: the desire to convey a public image as a company with stable labor relations, a well paid workforce, and highly trained employees. As a factual matter, the court found that the CWA logo did not communicate that message. The court stated that a customer could view the CWA logo with suspicion and associate it with service disruptions and labor disputes. Because the court found that the logo in fact communicated an ambiguous message or possibly a negative image, the court held that BellSouth and the CWA did not establish a special circumstance justifying an intrusion on employees’ Section 7 right to refrain. Finally, the Fourth Circuit dismissed the notion that the logo requirement was any more of a special circumstance because it was the product of collective bargaining. The court suggested that the right of an individual to wear or refuse to wear union insignia is a right that unions cannot bargain away.

Consequently, the Fourth Circuit reversed, remanded, and ordered the NLRB to modify its order consistent with its opinion (i.e., to find that BellSouth and the CWA had violated the NLRA).

Under the Fourth Circuit’s ruling, employers and unions cannot agree to require employees to wear a union logo. How then can a union gain greater public recognition through a company’s uniform policy? The Fourth Circuit might have reached a different result if the collective bargaining agreement had allowed dissenting employees to opt out of wearing the union logo. Thus, unions and employers might be allowed to negotiate a uniform requirement where the default uniform contains the union logo, provided that a dissenting employee is able to request a uniform without the union logo. In its opinion, the NLRB suggested that such an opt-out might have its own Section 7 implications because employees would then be required to signal their favor or disfavor of the CWA. The NLRB stopped short, however, of saying that such a scheme would be unlawful.

Voluntary Recognition, Neutrality and Card Check Agreements: Are the Rules About to Be Changed?

2005-01-10T16:54:00.000-05:00

The D.C. Bar's Labor & Employment Section is hosting a brown bag program to discuss potential changes in the NLRB's treatment of voluntary recognition, neutrality, and card-check agreements.

The program is on Thursday, February 3, 2005 from 12:30 to 2:00 pm at the D.C. Bar Conference Center 1250 H Street NW, Washington D.C.

Speakers include former Board Member Charles I. Cohen, Ellen Farrell of the NLRB, and Nancy Schiffer of the AFL-CIO. The speakers are sure to debate Dana/Metaldyne and Shaw's Supermarkets.

Registration info is at http://www.dcbar.org/for_lawyers/events/search_results.cfm?categoryID=195,197

2004-12-29T14:28:00.000-05:00

Circuit split regarding federal court jurisdiction over federal employees’ claims covered by negotiated grievance procedures

2004-12-29T13:51:00.000-05:00

Disagreeing with the Federal and Eleventh Circuits, the Ninth Circuit recently held that federal courts lack subject matter jurisdiction over claims covered by the negotiated grievance procedures of federal employees’ collective bargaining agreements. Whitman v. Dep’t of Transportation, 382 F.3d 938 (9th Cir. 2004).

The Civil Service Reform Act provides that the grievance procedures contained in a collective bargaining agreement covering federal employees “shall be the exclusive administrative procedures for resolving grievances which fall within its coverage,” with certain very limited exceptions. 5 U.S.C. § 7121(a)(1) (emphasis added). Congress added the word “administrative” to § 7121(a)(1) in 1994. Before 1994, that section provided that the grievance procedures “shall be the exclusive procedures for resolving grievances which fall within its coverage.” The courts interpreted the old version of § 7121(a)(1) as stripping the federal courts of subject matter jurisdiction over grievable claims.

The Federal and Eleventh Circuits have held that § 7121(a)(1) no longer strips federal courts of subject matter jurisdiction. Those courts reasoned that, by adding the word “administrative,” Congress signaled an intent to no longer restrict judicial remedies. Associacion De Empleados Del Area Canalera v. Panama Canal Comm’n, 329 F.3d 1235 (11th Cir. 2003); Mudge v. United States, 308 F.3d 1220 (Fed. Cir. 2002). Hence, absent some other bar to subject matter jurisdiction, federal employees may bring their grievable claim in federal court, according to these Circuits.

In contrast, the Ninth Circuit cited its general rule that federal courts “have no power to review federal personnel decisions and procedures unless such review is expressly authorized by Congress in the CSRA or elsewhere.” Applying this rule, the Ninth Circuit held that “5 U.S.C. § 7121(a)(1) preempts employment related claims which fall within collective bargaining agreements because the statute does not expressly provide for federal court jurisdiction over such claims.”

The plaintiff-appellant in the Ninth Circuit decision has petitioned for rehearing en banc. If rehearing is denied, expect a cert. petition.

UPDATE: The Ninth Circuit denied the petition for rehearing en banc.

UPDATE: The plaintiff-appellant filed a cert petition on February 22, 2005. He is represented by Thomas Golstein, Amy Howe, and Pamela Karlan, with the assistance of the Harvard Law School Supreme Court Litigation class.

Can employers waive their right to an NLRB election?

2004-12-29T10:55:00.000-05:00

The Bush Board recently granted review of a regional director’s decision to dismiss an employer’s election petition where the employer had allegedly agreed not to demand an NLRB election in the face of a union’s demonstration of majority support. Shaw’s Supermarkets, 343 NLRB No. 105 (2004).

An employer need not voluntarily recognize a union that claims to represent a majority of employees unless the union has won an NLRB election. When a union shows up at an employer’s door holding authorization cards from more than 50% of the employer’s employees, the employer can tell the union to take a hike. The employer’s statutory duty to recognize and bargain with the union will kick in only after the union petitions for and wins an NLRB election. Linden Lumber Div. v. NLRB, 419 U.S. 301 (1974).

Out in the real world, some employers and unions enter into agreements that require an employer to recognize a union at some future time when the union demonstrates that it has the support of a majority of employees. These agreements are called card-check agreements. In a card-check agreement, the employer effectively promises not to insist on an NLRB election.

In Shaw’s Supermarkets, the parties entered into an “after-acquired stores clause.” An after-acquired stores clause is a particular type of card-check agreement. Typically, an after-acquired stores clause appears in a collective bargaining agreement covering a facility where the union already represents the employer’s workers (e.g., Facility A). The employer promises to recognize the union at any of the employer’s other facilities (e.g., Facility B or Facility C) if the union demonstrates that it has majority support.

The after-acquired stores clause in Shaw’s Supermarkets provided that “[w]hen the Employer opens new stores within the geographic area described in Article 1, the Employer will . . . recognize the Union and apply the contract when a majority of Employees have authorized the Union to represent them.” The union obtained signed authorization cards from a majority of employees at a new store and demanded recognition. The employer refused to recognize the union and asked the NLRB to hold an election. The Board’s regional director (RD) refused to hold an election, citing the parties’ after-acquired stores clause. The employer then asked the Board to review the RD’s decision and find that it did not waive its right to insist on an NLRB election.

The Board voted to grant review of the RD’s decision. It questioned whether the after-acquired stores clause clearly evidenced an intent to foreclose the employer from demanding an NLRB election. Assuming the clause was clear, the Board also questioned whether policy considerations weigh against enforcing such an agreement. In a procedural move, the Board granted the employer’s request for review and remanded the case for a hearing on these issues.

The first issue (the clarity issue), while significant, is less important than the second issue (the enforcement issue). Future parties could adapt to a high clarity standard. Thus, even if the Board requires superclarity in after-acquired stores clauses, unions and employers will still be able to negotiate them, even if it requires some additional effort.

On the other hand, the Board’s resolution of the second issue could eliminate after-acquired stores clauses as a method for unions to obtain representational status. In its opinion, the Board stated that policy considerations might counsel against enforcing even a superclear after-acquired stores clause. 343 NLRB No. 105, slip op. at 2. If so, after-acquired stores clauses will no longer be enforceable and unions will lose a tool for expedited recognition. Although an employer could still voluntarily adhere to its after-acquired stores clause, it would have no legal obligation to do so.