NLRB Reverses GOP Excesses
October 13, 2011 by Beeson Tayer & Bodine
The Obama Board has been busy issuing decisions addressing important rights under the NLRA. Many, but not all, of these decisions mark dramatic improvement in the rules the NLRB applies to union organizing and the rights of union members on the job. Here is a summary of some of the most significant of these recent decisions.
Voluntary Recognition Bar Restored The Board’s decision in Lamons Gasket, released on August 26, overturns the Board’s 2007 decision in Dana Corp. Lamons Gasket focuses on the new bargaining relationship created by an employer’s voluntary recognition of a union based on a showing of support by a majority of employees. For over 40 years, federal law had barred decertification challenges to a union’s representative status for a “reasonable period” following voluntary recognition, in order to give the new bargaining relationship a chance to succeed. In its 2007 decision in Dana Corp., the Board required a notice posting and allowed for an immediate challenge to the union’s status by 30% of employees or a rival union. Lamons Gasket returns the Board to the law as it existed before Dana Corp.
NLRB Reinstates Successor Recognition Bar The NLRB Aug. 26 decided 3-1 to restore a “successor bar” doctrine requiring successor employers to recognize incumbent unions for a reasonable period before challenging the majority status of employee representatives. In UGL-UNICCO Serv. Co., the Board overruled its 2002 decision in MV Transportation, which created an immediate window after the sale or merger for the union’s status to be challenged by 30 percent of employees, the new employer, or a rival union. The MV Transportation decision in turn reversed a 1999 decision in St. Elizabeth Manor, Inc., under which the new bargaining relationship between the incumbent union and the new employer was held to be protected for a reasonable period of time without a challenge to the union’s representative status.
The Board majority said the successor bar better achieves the Act’s “overriding policy” of preserving industrial peace by promoting stability in collective bargaining relationships without impairing employee free choice. The Board provided new guidance on how much time would be a reasonable period for bargaining in the context of a business successorship. The Board held that in cases in which the successor employer has expressly adopted the existing terms and conditions as a starting point for bargaining, a reasonable period is six months after the parties’ first bargaining meeting. In cases in which the successor employer has recognized the union but has unilaterally established initial terms and conditions before bargaining, the Board held that a reasonable period is no less than six months after the parties’ first bargaining session and no more than one year after the start of bargaining. The Board also decreased the contract-bar period applicable to election petitions filed by employees or by rival unions from three years to a maximum of two years where (1) a first contract is reached by the successor employer and the incumbent union within the reasonable period of bargaining during which the successor bar applied, and (2) there was no open period permitting the filing of a petition during the final year of the predecessor employer’s bargaining relationship with the union.
Employer Cannot Refuse to Permit it Subcontractor’s Employees to Handbill on Employer’s Property In New York, New York LLC, the Board has enacted a new standard for off-duty employees seeking to handbill their employer’s customers on property not owned by their employer.
The case arose in Las Vegas where the Ark Restaurant Corp. provides restaurant, catering, and room service for the New York, New York casino and hotel. While the Ark employees are not employed by the hotel, they work exclusively within the hotel. On several occasions off-duty employees of Ark entered the hotel to distribute handbills to customers and Ark employees. On each occasion, the hotel demanded the off-duty Ark employees leave the property and, upon refusing to do so, the employees were issued trespassing citations and escorted off the property.
The NLRB declined to follow established frameworks addressing either off-duty employees handbilling on their employer’s property or non-employees handbilling on an employer’s property, instead holding that off-duty employees of a contractor have a right to exercise their own Section 7 rights on the property where they work. The Board took efforts to limit their holding, noting that “in some instances property owners will be able to demonstrate that they have a legitimate interest in imposing reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees…” In this instance, the Board found that the off-duty employees “did not interfere with operations or discipline.” This decision for the first time lays out guidelines for contractor employees to handbill at their workplace when that workplace is owned and operated by another employer.
New Standard for Appropriate Units in Non-Acute Health Care Facilities The Board has adopted a new approach for determining what constitutes an appropriate bargaining unit in health care facilities other than acute care hospitals (which are covered by the Board’s Health Care Rule). In addition, the Board clarified the criteria used in cases where an employer argues that a proposed bargaining unit is inappropriate because it excludes certain employees.
The 3-to-1 decision in Specialty Healthcare and Rehabilitation Center, which was released August 26, finds that Certified Nursing Assistants at a nursing home may comprise an appropriate unit without including all other nonprofessional employees. It overrules the Board’s 1991 decision in Park Manor, which had adopted a special test for bargaining unit determinations in nursing homes, rehabilitation centers, and other non-acute health care facilities. Employees at such facilities will now be subject to the same “community-of-interest” standard that the Board has traditionally applied at other workplaces.
In applying the traditional “community-of-interest” standard in this case, the Board majority took the opportunity “to make clear that, when employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, func- tions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned -for unit.” This clarification will make it easier for unions to have petitioned-for units approved by the Board in the face of employer attempts to expand the unit.
Undocumented Workers Get No Backpay In Hoffman Plastic Compounds, Inc. v. NLRB (2002), the Supreme Court held that the Board lacks “remedial discretion” to award backpay to an undocumented worker who, in violation of the Immigration Reform and Control Act (IRCA), presented false work-authorization documents to obtain employment. In Mezonos Maven Bakery, Inc., issued August 9, the Board further ruled that Hoffman Plastic also forecloses the Board from awarding backpay to un- documented workers in a case where the employer, not the employees, violated IRCA by failing to ask workers for any work authorization documents at all.
The Board reasoned that such workers are party to an “unlawful employment relationship” and that “the unlawful character of the relationship does not depend on whether it is the employee or the employer who has violated IRCA.” Chairman Liebman and Member Pearce filed a concurrence in which they stated that “[i]f the issue were an open one, we would not hesitate to reject the [employer]’s backpay defense” because “[p]recluding backpay [for undocumented workers] undermines enforcement of the Act,” “chills the exercise of Section 7 rights,” and “fragments the work force and upsets the balance of power between employers and employees.” The concurrence also states that “other monetary remedies, which have not been tested here,” may still be possible, such as “a remedy that requires payment by an employer of backpay equivalent to what it would have owed to an undocumented discriminate … into a fund to make whole discriminatees whose backpay the Board has been unable to collect.” On September 6, the AFL-CIO and the National Immigration Law Center, which represent the charging party in this matter, filed a motion for reconsideration.
Board Finds Union’s Pre-election Lawsuit Grounds for Overturning Election In Stericycle, Inc., issued August 23, the Board reversed its 1996 Novotel rule for dealing with union-backed employment lawsuits before an election.
At issue is whether union assistance with such suits constitutes an improper grant of benefit that might warrant re-running the election if the union wins. Under Novotel, a union was allowed to give employees free legal services in connection with a lawsuit during the period after an NLRB election petition had been filed before the election. However, the D.C. Cir- cuit refused to enforce that rule, prompting the majority in Stericycle to reverse it and conclude that such assistance is objectionable conduct in certain circumstances.
The Board announced its new rule as follows: “We hold that a union engages in objectionable conduct warranting a second election by financing a lawsuit filed during the narrow time period—known as the ‘critical period’—between the date of the filing of the representation petition and the date of the election, which states claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.”
Employee lawsuits filed before the NLRB petition is filed, however, are not objectionable under the Board’s new rule. The Board also noted that a union may during the “critical period” properly “inform employees about their rights [under labor and employment laws], assist them in identifying violations, urge them to seek relief, and even refer them to competent counsel [which may file suit during the critical period as long as there is no union funding] without casting into question subsequent election results.”
Union’s Waiver of Dues Payments Warrants Setting Aside Election A union’s promise that employees would not have to pay union dues that their former employer failed to deduct from their paychecks improperly granted a benefit that interfered with an employee decertification election the Board July 18.
In Go Ahead N. Am. LLC, the Board acknowledged that the failure to collect dues was not a problem created by the union, but they observed that the union did nothing to relieve employee-members of the back dues obligation until long after it accrued and shortly before the employees voted on a petition to decertify the union. The union’s constitution provided for automatic suspension of members whose monthly dues were not paid by the end of the month after they accrued. In order to resume active membership in the union, suspended members were required to pay the unpaid dues as well as an additional fee. After the decertification petition was filed, the union realized that all of its members would be considered suspended under the union constitution and it decided not to pursue the dues delinquencies.
Concluding that employees reasonably would have inferred that the union was giving them a benefit in order to induce their support in a vote on decertification, the Board set aside the union’s 68-51 victory and ordered a rerun of the election. This decision reaffirms existing Board law, but stands as a reminder that unions facing decertification petitions do not have a free hand to waive dues delinquencies.
Board Rejects Newspaper’s First Amendment Defense for Journalists’ Discharge The Board on August 11 found that a newspaper publisher committed several unfair labor practices during a union organizing campaign among newsroom employees, and ordered the publisher to reinstate eight discharged journalists.
In Ampersand Publ’g LLC the Board ruled the pub- lisher violated the NLRA by, among other things, interrogating employees, lowering the performance evaluation scores of union supporters, and discharg- ing union supporters. The Board rejected the publisher’s arguments that the union organizing campaign was not protected because the employees’ primary demand was to protect their integrity as professional journalists at the newspaper and because the campaign involved disloyal conduct by employees. The Board also rejected the publisher’s position that governmental intervention on the employees’ behalf would impermissibly interfere with the publisher’s First Amendment right to control the content of its newspaper.
A court in 2008, with Ninth Circuit approval, previously refused the Board’s request for injunctive relief in this case, based in part on the First Amendment defense raised by the publisher, so an appeal by the publisher is anticipated.
Employees Protected from “Preemptive” Interference with Section 7 Activities The Board last January issued a deci- sion ruling the NLRA prohibits employers from engaging in conduct intended to prevent employees from exercising their Section 7 rights, even if those employees have not already engaged in protected activity.
In Parexel International, LLC, the Administrative Law Judge determined that Parexel terminated an employee in order to prevent her from discussing her workplace concerns with other employees – a concerted activity that would have been protected by the NLRA. However, because the employee had not yet engaged in the concerted activity, the ALJ dismissed the claim. On appeal, the Board confirmed that the employ- er’s actions were indeed a “preemptive strike to prevent [the employee] from engaging in activity protected by the act.” But the Board went further and found that the termination violated the NLRA regardless of whether the employee had already engaged in concerted activity. The Board concluded that an employer “violates Section 8(a)(1) by simply terminating the employee in order to be certain that she does not exercise her Section 7 rights. … After all, the suppression of future protected activity is exactly what lies at the heart of most unlawful retaliation… .”
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