RECENT DECISIONS BY THE NATIONAL LABOR RELATIONS BOARD

During 2007, the NLRB issued a number of significant decisions, nearly all of which significantly undercut the rights of organized labor and American workers. The following is a brief summary regarding major trends and cases.

A. Undermining the Voluntary Recognition Process

• In the recent years, as the result of continuing delays in the Board’s representation election procedures, unions have moved away from use of NLRB secret ballot elections in favor of voluntary recognition via card checks by employers-voluntary has been approved by the U.S. Supreme Court, by prior NLRB law and is implicit in the language of Section 9 of the Act (employees can petition for an election only if “their employer declines to recognize their representative”).

• On September 29, the NLRB stripped voluntary recognition of long-standing legal protections and left it unpredictable and problematic – Dana Corp., 351 NLRB 1283 (2007);

• Decision tosses out the decades–old rule that, following voluntary recognition, the parties are entitled to a reasonable period of time to negotiate a collective bargaining agreement without challenge to the union’s majority status and that a resulting contract will bar a challenge to the union’s status as the recognized bargaining representative for the duration of the contract up to 3 years;

• Instead, the NLRB developed an entirely new set of rules that apply only when an employer agrees to voluntarily recognize the choice of a majority of the unit employees as demonstrated by check of authorization cards;

• Parties must notify the NLRB Regional Office of voluntary recognition agreement;

• Employer must post NLRB notice to notify employees that 30% may file a decertification petition or petition for another union within 45 days;

• No contract bar if contract is entered without complying with these requirements;

• NLRB rationale for the new rules on voluntary recognition - although election process “may result in substantial delay in a small minority of Board elections,” this is preferable “for resolving questions concerning representation.” The Board procedures, it explains, provide “greater regularity, fairness and certainty in the final outcome, while voluntary recognition has no guarantees of comparable safeguards.”

• Contrast Wurtland Nursing and Rehabilitation Center, 351 NLRB No. 50 (September 29, 2007).

• A majority of workers who had a union signed petition stating: “we … wish for a vote to remove the Union….”

• NLRB Decision: Employer can lawfully withdraw recognition from the Union; no election required;

• NLRB Rationale: Employee signatures on a petition are: “objective proof of the employees’ withdrawal of support for the Union.”

• No discussion of petition-signing as a public action susceptible to group pressure even though Dana workers signed individual cards and Wurtland workers all signed a single petition;

• The petition in Wurtland said: “we… wish for a vote to remove the Union….” The NLRB held: “the more reasonable reading of the petition… is that the signatory employees wished (to remove) the Union as their representative, not that they wished to vote to remove the Union.”

• Contrast Shaw’s Supermarkets, Inc., 350 NLRB No. 55 (August 10, 2007)- where employees filed a decertification petition for an NLRB election to eliminate their union, the employer was allowed to lawfully withdraw recognition without any election on the basis of slips signed by a majority of workers stating they did not want the union to continue to represent them;

B. Restricting and Narrowing NLRB Remedies

• Making it Harder for Illegally Fired Workers to Recover Back Pay

• St. George Warehouse, 351 NLRB No. 42 (September 30, 2007) – Reversing 45 years of precedent, NLRB ruled that the General Counsel and unlawfully terminated workers, in a hearing to determine back pay after a finding of illegal conduct by the employer, will now have to come forward with evidence that the unlawfully terminated employees took appropriate steps to find other work – if an illegally fired worker cannot produce evidence of an adequate search for other work, the employer will have no back pay obligation;

• The Grosvenor Resort, 350 NLRB No. 86 (September 30, 2007) – The NLRB announced a new rule that illegally fired workers who wait more than two weeks before looking for interim work will be denied back pay for that period so as not to “reward idleness.” Employees were denied back pay for the period of time they were engaged in picketing to get their jobs back.

• Domsey Trading Corp., 351 NLRB No. 33 (September 30, 2007) – The NLRB reduced back pay for illegally fired workers because they failed to list certain job search efforts on an unsworn compliance form. The Board reversed the ALJ and found that the contemporaneous but unsworn compliance form wherein the interim employment was not listed was more reliable than the employees subsequent sworn hearing testimony, which included the interim employment.

• Toering Electric Co., 351 NLRB No. 18 (September 29, 2007) – The NLRB created another new rule shifting the burden to the General Counsel and illegally fired workers to prove that applicants/union salts who were refused employment had a “genuine interest” in working for the company that illegally refused to hire them.

• Submitting employment applications with no intention of seeking work but rather to generate unfair labor practice charges is not protected activity…. “We seek to discourage cases where unfair labor practice allegations or hiring discrimination are filed for this objective. We therefore, believe that a change in the law is warranted so as to better insure against it.”

• Contractor Services, Inc., 351 NLRB No. 4 (September 27, 2007) – Salt is refused back pay for failure to exercise “reasonable diligence” in search for interim employment inasmuch as his search was limited to non-union companies and he did not seek employment on jobs of short duration that did not present substantial organizing possibilities.

• Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007) – In back pay cases where it is shown that an employer unlawfully refused to hire a union salt, it will no longer be presumed that, as in other refusal to hire cases, the back pay period should run from the date of the unlawful refusal until the employer makes a valid offer of employment. Instead, the General Counsel must present evidence that the salt, if hired, would have worked for the employer for a definite period.

• Making it Harder to Win Bargaining Orders against Employers that Make Fair Elections Impossible.

• When an employer has engaged in illegal conduct during an organizing campaign so sever that a fair election is not possible, the Supreme Court in 1969 held that the NLRB can order the employer to bargain with a union that has demonstrated majority support. In Internet Stevensville, 350 NLRB No. 94 (September 17, 2007), the Board rejected a request by its Republican General Counsel for a bargaining order to remedy egregious employer misconduct and refused the ALJ’s recommended bargaining order remedy. The illegal employer conduct found by the NLRB included:

• Unlawful interrogation;
• Unlawful threats of job loss if employees voted the union in;
• Unlawful threats of loss of benefits if employees voted the union in;
• Unlawful threats of discipline for soliciting the union;
• Unlawful threats of plant closure;
• Unlawful unilateral changes in work rules and working conditions;
• Unlawful statements that the company was not afraid to break the law in order to keep the union out of the plant.

• Decline of Section 10(j) Relief – Section 10(j) allows the NLRB to petition a U.S. district court for immediate, temporary injunctive relief pending a hearing and decision on the underlying unfair labor practice case by the Board. Section 10(j) relief “is designed to fill the considerable time gap between the filing of a complaint by the Board and issuance of its final decision in those cases where considerable harm may occur in the interim.” If granted, a Section 10(j) injunction can force an employer to rehire illegally fired workers or to bargain with a union it has unlawfully refused to recognize.

• Seeking relief under Section 10(j) is discretionary with the Board

• NLRB General Counsel receives Section 10(j) requests from its Regional Offices, decides in which of these cases it will seek authorization from the Board, and must then be granted authorization by majority vote of the Board.
• In the past five years, a precipitous decline in the Board’s use of the Section 10(j) remedy.

• From a yearly average of 40-50 Board authorizations during the 1990’s, there have been 14-17 since 2002.

• The percentage of General Counsel requests compared to the total number of requests received from Regional Offices has declined from 2002 from almost 50% to about 33%.

• The high success rate of Section 10(j) petitions filed in federal court between 80% and 95% in the 1990’s and 100% in 2003, 2004 and 2006.

C. Workers’ Rights to Bargain Collectively, to Strike, and to Engage in Protected Activity

i. Lockouts

• In a pair of cases involving partial lockouts, the Board undermined the fundamental right to strike by sanctioning lockouts in which employers discriminated among workers solely on the basis of union membership;

• Midwest Generation, 343 NLRB 69 (2004), rev’d and remanded sub. nom, Local 15, IBEW v. NLRB, 429 F3d. 651 (7th Cir. 2005) – The NLRB allowed an employer to lock out strikers who had offered to return to work while it continued to employ those who had crossed the picket lines and abandoned the strike. The Court of Appeals, in a unanimous decision, denied enforcement and concluded that the Board’s decision was “in derogation of nearly four decades of employee protection.”

• Bunting Bearings Corp., 343 NLRB 479 (2004) – Relying on its decision in Midwest Generation (before it was reversed), the Board upheld another employer’s decision to lock out only its non-probationary employees, “all of whom were union members,” while allowing its probationary employees, “all of whom the … [employer] believed were not union members,” to continue to work. The partial lockout caused the union to lose support and provided the employer with an opportunity to stop bargaining and withdraw recognition from the union. In an unpublished decision issued in 2006, the U.S. Court of Appeals for the District of Columbia overturned the Board’s ruling.

ii. Strikers’ Rights to Reemployment

• It is settled law that, in order to be considered permanent replacements who will be allowed to continue to work in the place of returning strikers after the strike has ended the replacements must have “a mutual understanding with the [employer] that they are permanent.”

• Jones Plastic and Engineering Co., 351 NLRB No. 11 (September 27, 2007), the Board held that “at will employees” who signed agreements that their employment could be terminated “by myself or by [the employer] at anytime, with or without cause” could still be considered “permanent” replacements if the employer elected to deny reinstatement to strikers at the end of the strike.

iii. Collective Bargaining Rights and Unilateral Action by the Employer

• When employers make changes in employees’ working conditions in violation of their legal obligation to bargain, the traditional remedy has been to restore the status quo, bargain with the union and rescind any actions taken as a result of the illegal unilateral changes, including discipline.

• In Anheuser Busch, Inc., 351 NLRB No. 40 (September 29, 2007), the Board overruled almost two decades of precedent that otherwise valid discipline resulting from an unlawful unilateral change in conditions must be rescinded. The Board upheld employee discipline based on possible in-plant drug use disclosed by surveillance cameras that were installed without notice to or bargaining with the union.

• In Hacienda Resort Hotel and Casino, 351 NLRB No. 32 (September 29, 2007), the Board, over two dissents and after a remand by the Court of Appeals for the Ninth Circuit that had vacated the Board’s original decision, again ruled that the employer did not refuse to bargain in violation of Section 8(a)(5) of the Act by unilaterally terminating dues checkoff after the expiration of the collective bargaining agreement and without bargaining to impasse. The Board relied on language in the agreement that provided for checkoff “during the term of the agreement.”

iv. Lawsuits in Retaliation Against Protected Activity

• The NLRA prohibits employers from retaliating against employees for engaging in activities protected by the Act and has long been understood to prohibit retaliatory employer lawsuits.

• In BE&K Construction, 351 NLRB No. 29 (September 29, 2007), the NLRB held that the filing of a reasonably based lawsuit can never be an unfair labor practice even if the employer has a retaliatory motive.

• The NLRB dismisses unfair labor practices charges filed by unions against a non-union employer based on the employer’s unsuccessful lawsuit against the union. The lawsuit sought damages arising from the unions’ actions raising environmental concerns in an administrative hearing about the project, in handbilling and in picketing and filing a grievance against the company’s joint venture partner.

v. The Act’s Coverage Shrinks

• The Board has denied coverage to graduate teaching and research assistants, Brown University, 342 NLRB 483 (2004);

• Disabled janitorial employees, Brevard Achievement Center, 342 NLRB 982 (2004);

• Faculty members, Le Mayne-Owen College, 345 NLRB No. 93 (2005);

• Artists’ Models, Pennsylvania Academy of Fine Arts, 343 NLRB 846 (2004);

• Newspaper carriers and haulers, St. Joseph News-Press, 345 NLRB No. 31 (2005);

• Effectively, temporary employees working jointly for a supplier and a user client, unless both employers consent, Oakwood Care Center, 343 NLRB 659 (2004).

• Definition of excluded supervisors is expanded.

• Oak Park Nursing Care Center, 351 NLRB No. 9 (September 26, 2007) – Dismissing union’s representation petition for a nursing home unit of LPN’s on grounds that all are supervisors because they complete “nursing counseling forms” for CVA’s. Contrary to the Regional Director, the NLRB ruled that “the counseling forms are a form of discipline because they lay a foundation under the progressive disciplinary system for future discipline against an employee.”

D. Concluding Observations

• The NLRB is well-known for its decisional changes with every change of administration, but the recent trends are different. The current Board has reached back decades, in some cases, to reverse long-established precedent, often going to the core values of the Act, and it has frequently done so on its own initiative and without seeking briefing or oral argument.

• The NLRB in 2007 remained deeply divided. The percentage of dissents may be unprecedented. In 1984, during what is often regarded as the most contentious period in the Board’s recent history, there were dissents in about 17% of all cases. By comparison, during fiscal year 2007, there were dissents in about 34% of the cases. Currently, the Board is down to two (2) members.

• The result has been more than a change in the law, or discontent with the result in particular cases. Rather, it has been a loss of confidence in the Board and the legitimacy of the process. Accordingly, the Board has experienced a dramatic and unprecedented decline in case filings in the past decade. Between fiscal 1997 and 2007, the number of representation cases dropped from 6,179 to 3,324, a 46% decline. From 2005 to 2006 alone, the representation intake dropped by 26%. For the same 10 year period, the unfair labor practice cases declined from 33, 439 to 22,147, a 34% drop.