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UnStacking the Deck – Keys to Staying Union-Free in 2014


Since 2009, employers that are union-free (and intend to stay that way) have had to deal with a blizzard of new decisions and rules by agencies of the Obama Administration to make union organizing easier and more difficult to resist.  It appears that the final pieces of a grand payback to organized labor, in lieu of the Employee Free Choice Act, will fall into place in 2014.  As a result, employers will have to reinvent their union-free strategies to meet game-changing challenges.  Employers that do not change and retool their union-free strategies dramatically will find that organized labor has been dealt all of the winning cards.  .Future court decisions may block some but not all of the changes that the National Labor Relations Board (Labor Board) and Department of Labor (DOL) are poised to implement.  Prudence dictates, however, that employers should prepare for the worst – a world where the balance between labor and management rights is tipped decisively in favor of labor.  This shifted balance can be effectively countered only if employers do several important things, most of them before union organizing is detected.  Once union organizing is underway, there will not be time to make and the Labor Board’s law will prevent most of the most essential and effective changes.

The Capstone Changes Expected in early 2014

Employers cannot overlook the sincerity of the current Administration’s strongly held belief that employees are always better when represented by unions and that union representation is necessary to revitalize and reestablish a strong Middle Class.  Implementation of this belief has evidenced itself in the appointment into key administrative positions of zealots who feel they are on a country-saving mission.  Theirs, they believe, is a grand and noble mission where nearly any means will justify the end.

The Labor Board will almost certainly republish its new election rules and, in doing so, all but erase the ability of employers to respond effectively to union organizing post- petition.  This may come as early as April.  By that time, in March, the DOL will have issued its new interpretations of the Labor Management Reporting and Disclosure Act (LMRDA) that will redefine the public reporting requirements for employers who use third-party consultants or attorneys to establish and implement union-free strategies or combat active organizing.  These are the remaining two pieces that will complete the Obama Administration’s rescue plan for big labor.  When combined with the reinterpretations of the law already made by the Labor Board, union organizing will not only be easier but nearly irresistible…unless non-union employers learn to operate in this entirely new environment.  Yet, there are things that can be done to create a winning strategy to remain union-free.  

NLRB Election Rules Changes:

In April of 2012, the Board published a series of rule changes to force speedy representation elections and to restrict (some would say eliminate) the ability of employers to affect issues such as the appropriateness of the requested unit and voter eligibility  These changes were enjoined by a court in May of 2012 because at the time the Rules were issued, the court said the Board lacked the necessary quorum to engage in rule-making.  As a result of the court’s action, the Board withdrew the new rules.  The technicality relied on by the court has now been cured and now, with a full slate of members, the Chairman has signaled that that he wants to reissue the Rules, including, perhaps, even those portions that were removed from the original version during negotiations to avoid the resignation of the opposing member.  There is no doubt that when the Rules are proposed to the other members by Board by the Chairman, the pro-union majority will act quickly and favorably.

One combination of these Rule changes will shorten the time between the filing of a petition and an election.  Under some circumstances, they would permit an election to be conducted as soon as fourteen days after the petition, only one week after the hearing where the Regional Director sets the date of the date of the election and the voting unit.  These changes would make “organizing by ambush” more than a catch-phrase.

Another group of changes, when combined with substantive law modifications that will be discussed later, would nearly eliminate the ability of employers to litigate the appropriateness of the bargaining unit requested by the union and voter eligibility in the hearing on the union’s petition.  As a consequence, an employer may be unable to stop an election in a unit that is as small as a single classification or makes no operational sense merely because it was requested by the union (usually based on support for the union).  The employer also would not be certain who would be considered to by the Board to be supervisory and, therefore, would not know who could be required to participate on behalf of the employer in the campaign to combat the union’s drive and provide information with regard to voter concerns and attitudes. 

 Board Decisions

The Obama Board has already made it a protected right for employees to use social media to disparage their employer, prohibited instructions to keep the existence and content of an investigation of employee misconduct confidential, placed extreme limits on restrictions on off duty access to the employer’s property and, soon, is likely to open the email system of employers to use by union organizers.  The Labor Board has also been quick to use injunctions against alleged wrongful conduct during organizing and imposing enhanced remedial orders, such as the reinstatement of discharged employees pre-election before it is finally determined that the discharge was due to union activity, access to the employer’s premises for union organizers, in-facility speeches by union organizers, and attendance by union organizers at captive audience meetings.

Three decisions make resistance to the union organizing especially difficult.  The first relates to proposed bargaining units, the second to the definition of supervisor and the third to the use of neutrality agreements.

Specialty Healthcare:

In Specialty Healthcare (357 NLRB No. 83 (2011)) the Labor Board held that a unit of certified nurse assistants in a nursing home constituted an appropriate unit for an election and bargaining.  The employer had argued that a unit limited to CNAs was inappropriate and should include all non-professional employees, a common unit in nursing homes.  In making its decision, the Labor Board rejected its long-standing presumption in favor of wall-to-wall or large units, against the proliferation of units and against “extent of organizing units”.  In the future, it said, units, perhaps even as small as a single job classification, would be found appropriate.  Not less significant was the Board’s declaration on the burden of proof necessary for an employer to prove that the unit requested by the union was inappropriate.  Going forward, the employer’s burden will not just be persuasion, but the employer would be required to establish by “overwhelming evidence” that the requested unit would be inappropriate unless it included (or excluded) certain other employees.  This unprecedented and extraordinarily high burden is expected to be carried only rarely.  The result is that the appropriate unit for the election will almost always be the unit desired by the union and the issue of appropriateness of the unit is effectively off the table prior to the election. 

Specialty Healthcare cleared the way for multiple “micro-units” within a single workplace and balkanized workforces where several different unions may each represent only small groups of employees.  The dysfunction that would result from a state of nearly constant bargaining, constant risk of strikes and constant “one-upsmanship” would be dramatic, costly and debilitating.  At a minimum, a single union could obtain a foothold in the workplace by organizing a single, small group of employees. At its worse, movements between classifications, job flexibility, cross-training and a host of other operational imperatives would be either impossible or come at great and unnecessary cost to efficiency.

This operational nightmare is a significant and real consequence of this Board’s decision and not fear-mongering.  Since Specialty Healthcare, Regional Directors have directed elections in such units as the cosmetics and scents employees at Macy’s and the women’s shoes at Bergdorf-Goodman.  Different unions and different contracts for each department in a department store is not far from different unions and different contracts for each classification in a manufacturing facility.

Oakwood Healthcare and Croft Metals, Inc.

While these two cases (Oakwood Healthcare, 348 NLRB No. 37 (2006); Croft Metals, Inc. 348 NLRB No. 38 (2006)) predate the Obama Labor Board, they are now being applied much more vigorously.  In these two cases the Labor Board narrowed the definition of “supervisor” significantly.  Supervisors are not “employees” under the NLRA and, therefore, are not entitled to the protections of the Act.  That means, supervisors have no protected right to engage in or to support a union and employers may count them on supervisors to resist union organizing and can interrogate them with regard to what they know about such activity in the workplace.  If the supervisors do not cooperate, they can be discharged from their employment without violating the National Labor Relations Act.  By narrowing the definition of a supervisor, employers are limited in who they can rely on during the course of a campaign.

Under these cases, for example, the Board will not consider the assignment of work to be an indicia of supervisory authority unless the exercise of this authority is not routine (not pursuant to detailed employer guidelines) and requires the exercise of independent judgment.  Other critical points of examination are the amount of time spent supervising, as opposed to doing employee work, and whether the supervisors are held accountable for the performance of those who are supervised.

Equally problematic with regard to the supervisory issue is that the likely new Rules will prohibit the litigation of whether an employee is or is not a supervisor pre-election, unless the number of the individuals involved is more than 10% of the proposed unit.  As a consequence of the narrowing of the definition of supervisor and the likelihood that the supervisory issue will not be decided pre-election, employers are left uncertain as to whether a particular individual is a supervisor until after the election, when the issue may be the subject of  an unfair labor practice charge alleging that the employer interfered with the protected rights of “an employee” when it included the “supervisor” in strategy sessions regarding union activity.  Including them as employer representatives during a campaign because the employer, in good faith, believes they are supervisors, therefore, places the employer at risk of having the election results overturned and other remedial Board orders.  Further, fearing that an employee may be improperly classified as a supervisor may push an employer to reduce the number of individuals it may use as advocates against unionization and as sources of information, only to find that the votes of those whom the employer was conceding to be employees are challenged by the union on the basis that they are, in fact, “supervisors.”  Unsure employers are placed in a classic “damned if you do and damned if you don’t” dilemma with some individuals feeling demoted when the employer, out of an abundance of caution, tells them that they being excluded from the “inner process” because they are not supervisors. 

Dana Corp, 356 NLRB No. 49 (2010)

In Dana Corp.  ( 356 NLRB No. 49 (2010), the Labor Board approved of a neutrality and cooperation agreement between Dana and the UAW.  The UAW had induced Dana not only to be neutral (not oppose the union’s organizing effort and agree to a card check) to union representation of the employees at a particular plant, but also to facilitate the organizing drive by providing the names and contact information of the employees to the Union and issuing a statement that the Company believes that it can work cooperatively and positively with the Union.  In return, the UAW agreed that, when it obtained the collective bargaining rights, it would not oppose in principle the productivity and incentive plans the Company felt were important. 

In this case, the UAW induced the Company’s neutrality and cooperation agreement with promises related to a subsequent collective bargaining agreement.  Some unions have achieved neutrality agreements by agreeing to back legislation favorable to the employer.  Other unions have coerced neutrality agreements through picketing, adverse publicity and/or regulatory (e.g., OSHA, EPA) complaints.[1]

At first blush, combatting a the neutrality and card check strategy does not appear to be relevant to a discussion of election-based strategies.  However, neutrality and card check agreements are not effective if the union is unable to obtain signatures on authorization cards from a majority of the employees.[2]  The subject also is relevant because the neutrality strategy has become the preferred method of organizing by some unions and employers must be prepared to combat it.  Many of the elements of a union-free strategy to resist traditional union organizing discussed below are also effective to neutralize or eliminate the desire of employees for union representative. 

New Persuader Rules

The Labor Management Reporting Act of 1959 requires that any third party hired by an employer to persuade employees with regard to union representation must report the nature of the activities and the amount paid to them by the employer.  Employers have a similar reporting requirement.  The reports must be filed with the Department of Labor and are available to the public on the DOL website.  The law contains an exception for “advice” and, historically, the DOL has defined “advice” as not including strategic, training and campaign-related services if those services were not rendered in direct contact with employees.  Services that are only indirect in that they involve only working with managers and supervisors of the employer who would then have direct contact with the employees would not have to be reported.  This is a bright-line rule that has prevailed for the last forty years. 

The DOL has announced that in March of this year it will issue a new interpretation of the law so that now only strictly legal advice will be considered to be within the advice exception and not reportable.  That is, if an employer sends a document to a lawyer for advice concerning its compliance with the law (as distinguished from its effectiveness or advisability), the activity and fee paid would not have to be reported.  However, if the employer asks the lawyer for advice concerning whether it would be a good thing to use the document in a campaign or for modifications that do not relate directly to the law, that advice would fall outside the advice exception and have to be reported.  Services that consist of the creation of a union-free strategy, training supervisors with regard to union organizing, and/or creating documents or speeches for use during a campaign and the fees charged for those services would have to be reported by both the employer and the service provider.  As noted above, those reports would be published on the DOL website for viewing by an interested union or any other person. 

Under the rule as it was proposed first in 2012 (and it is likely that the rule that will be published will be at least as far-reaching as the proposed rule, regardless of the numerous objections from employers and employer representatives), if a consultant or lawyer engages in any reportable activity, all labor services provided by that consultant/lawyer (and all others in the firm with which the consultant/lawyer is associated) to the employer, even if not directly related to a union-free strategic plan or a union campaign, would have to be reported along with the amounts paid.  This would include the development of or advice concerning policies, reviews of handbooks, and training.  Only actual work in connection with litigation and other direct legal advice would be excluded from the mandate. 

The bottom line is that, unless enjoined (there is likely to be a court challenge at least on the issue of whether the new rules violate attorney-client privilege), any employer using any third party consultant or lawyer to assist it to remain or to become union-free will have to make public that it is doing so, what it is doing and how much it is paying for the service.  Once reported, the information can be republished by a union to employees in an effort to discredit the employer or impugn the employer’s motives.

Since most employers do not have the resources to have strategic union-free specialists on staff, the new persuader rules may diminish the use of third party specialists.  Since studies historically confirm that employers who use third party union free specialists are significantly more successful than those who don’t, the persuader rules are viewed by some labor commentators as a way to clear the field for union organizers.  This consequence would be exacerbated if unions turn the reports into the moral equivalent of Megan’s Law (and they very well may).  Thus, employers that may be reluctant to obtain the services they need to combat union organizers, would be left to deal with the guile of professional organizers alone. 


Unstacking the Deck

In spite of the Obama Administration’s apparent determination to do everything possible – short of legislation – to assist unions to obtain new members, employers are still in control of their own destiny when it comes to remaining union-free…if they are willing to make the effort.  In addition, if  these employers act before the new persuader rules are promulgated in March, they may keep their strategic planning confidential. 

While not an exhaustive list, here are some things that employers should be doing now to stay union-free:

Neutralize the Desire for Third Party Representation (It will be too late after organizing begins)

·                     Have wages and benefits that are competitive with unionized companies in the area.  The value of being union-free lies elsewhere and if you are significantly under market, you will likely fail.

·                     Enable employees to have a stake in the organization’s success.  When the company’s success is “our” success, outsiders are not welcome.

·                     Have an effective communication program.  Employee security often depends on their knowledge of how you and they are doing and why things are happening that change or may change their lives.

·                     Make safety and equal/fair treatment important.  Besides keeping you on the right side of the law, it communicates that you care.

·                     Have a credible/legal problem solving system.  Employees with unresolved problems beg for help.

·                     Provide employees with due process.  If you provide protections from unfair treatment, employees do not need to find it elsewhere.

·                     Train supervisors how to manage employees and employee performance.  Supervisory failings in performance management frequently stimulates looking to the outside for help.

·                     Give supervisors time to supervise.  If supervisors do not have time to see and solve employee problems, employees have nowhere to turn but out.  Lean operations are sometimes anorexic .

Have a Strong and Communicated Union-Free Philosophy (You may not have time after a petition is filed)

·                     Communicate that you think it is important for the company to be union-free and why, avoiding reasons that can be twisted to appear exploitive.  “We don’t need a union because we need flexibility” can be heard as “we don’t want a union because we want to jerk you around.”

·                     Communicate what you are doing to make unions unnecessary.  If someone does not make the connections for them, employees may not see or appreciate it.


Educate Supervisors, They Need to Know[3]  

·                     Reasons why employees seek union representation and how to avoid or eliminate them.

·                     How unions organize employees.

·                     What unions are and can/can’t do.

·                     What supervisors can/can’t do with regard to protected activity.

·                     What their responsibilities are to recognize, report and respond to suspected union organizing without violating the law.


Structure Operations to Have Desired Employee Units

·                     Know what you need to show to have the employee units you desire and then adjust your operation (if necessary) to create “over-whelming evidence” that make undesirable and micro-units inappropriate.

·                     Collect and have easily retrievable documentary evidence to assure that you will be able to present within seven calendar days all that is necessary to carry your burden of “overwhelming evidence.”


Make Sure Those You Want to be Supervisors Will Meet the Board’s New Definition

·                     Prepare job descriptions that contain the indicia of supervisory status.

·                     Establish wage, evaluation and other policies and systems that establish that your supervisors are, under the law, supervisors.


Have a Rapid Response Plan

·                     Be prepared to respond effectively and quickly (within 24 hours) to credible union organizing.

·                     Be prepared to prove what is necessary to be proven at a post-petition hearing.


The reality is that the agencies of the Obama administration are stacking the deck in favor of unions and making it easier for unions to organize employees.  They are doing this by


·                     depriving employers of the time to educate employees effectively once a petition is filed,

·                     limiting the rights of employers to challenge and avoid election/bargaining units chosen by unions solely on the basis that they will be the easiest to organize.

·                     restricting the definition of “supervisor” and denying employers the ability to have that issue resolved pre-election.

·                     encouraging “card-check” strategies that include coerced or purchased neutrality and cooperation agreements. 

·                     expanding the public reporting of the nature and cost of union-free services provided to employers who use non-employee experts, encouraging employers without on-staff union-free specialists to remain vulnerable.


As a result of these administrative actions, keeping your workplace union-free in 2014 and for the foreseeable future will require more urgency and very specialized efforts.  Hopefully, this list of things you must do will be a guide.  Another word to the wise -- if you do not feel you have the in-house capability of meeting the challenge and wish to create your strategies within the confidentialities of your own company, you should consider seriously doing, at least, the most important strategic work prior to the March publication of the new rules for non-employee specialists who will then be required, as will you, to file public reports for inclusion on organized labor’s version of its own “Megan’s Law” type list of despicable offenders.

[1] Neutrality agreements have been challenged in the federal courts as providing something of value to unions in violation of Section 302 of the Labor Management Relations.  Two Circuit Courts of Appeals have reached opposite conclusions and the issue is now pending before the U.S. Supreme Court (Hollywood Greyhound Track, Inc.) and a decision should be made in this term.


[2] It is worth noting that the attack against the neutrality and cooperation agreement in the Dana case was brought by an anti-union employee and majority of the employees rejected the union.

[3] You won’t have time after a petition is filed


Making Union Organizing Easy and Managing a Business Almost Impossible

In the waning days of Wilma Liebman's tenure as Chairperson of the National Labor Relations Board, the Board overturned twenty years of labor law history and held in Specialty Healthcare that a group of employees as small as a single classification can be separately unionized (See Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011)).  In August of this year, the Sixth Circuit Court of Appeals affirmed the Board decision, deferring to the Board's "expertise" in such matters.

We have a perfect storm brewing.  

Micro-units are vastly more easily organized than plant-wide or store-wide units.  It's just arithmetic.  Two of five dock workers (shipping and receiving employees) in a bar drinking after work can sign cards on which a valid petition for an election can be based and all they need is one more to vote for the union and it's done.  If the appropriate unit consists of 100 employees, the union's task is much more difficult. 

Micro-units may sound too fantastic to be true.  It's not.  The Board is turning its back on well-established rules, such as single plant and single store presumptions, and subjecting employers to the real risk of dealth by a thousand cuts.  

Regional Directors of the Board have been applying the new rules for the last two years.  Among their decisions has been to certify the employees in the women's shoe department at a Bergdorf Goodman in New York and the cosmetics and fragrance department employees at a Macy's in Massachusetts as appropriate units for bargaining.  How many departments in a department store?  How many classifications in workplace?  How many groupings of similar skill-sets are there?  The application of the new rule may result in union representation and union contract for each of those departments, classifications and groupings.  The result is chaos.  When last I looked, chaos does not produce productive workers.

The storm fronts also converging are the likelihood of quickie elections reducing the time to election from petition date to two weeks or less and the Department of Labor's revision of persuader rules so that obtaining confidential legal advice concerning the application of Labor Board rules much more complicated and difficult.

There are things that an employer can do to meet its new burden of showing that the employees in other classifications or departments have an "overwhelming community of interest" with the employees subject to the petition so that a unit of just those employees would be inappropriate. A short list that will be expanded to meet an individual employer's situation and methods of operation are  

  • examine your organization to determine which job classifications or departments share skill levels so that they can be combined to make broad identifiable groupings;
  • flatten your management organizing so that more employees report to the same managers;
  • develop incentive plans or productivity measurements that cover the larger groupings;
  • cross train employees in the putative larger unit so that they can move easily across traditional job classifications/departments; and
  •  establish compensation grids and promotional opportunities that are common for all employees in the larger unit.
Clearly, things are going to become more difficult as time goes by as more and more Regional Directors are asked to apply the Board's new rules.  What an employer that wishes to remain union free or, at least, does not want to be paralyzed by the balkanization of its workforce cannot do is ignore the signs of the perfect storm and take action to protect against them.



Talking about a union during work time in a work area cannot be prohibited, says the National Labor Relations Board, unless all non-work talk also is prohibited.  What does that do to an employer's otherwise valid no-solicitation rule?  Where is the line between talking about a union (which realistically cannot be prohibited) and soliciting on behalf of or against a union during work time in work places (which can be prohibited)?  

The line is probably not where you think it is.

Boeing's struggles with the Board and the International Association of Machinists & Aerospace Workers ("IAM") in connection with its South Carolina facility has rubbed up that issue and raises a red flag.  In that case, an active employee union organizer spent time in non-work areas during non-work time seeking to convince his co-employees to support the union and trying to get union authorization cards signed. After the shift began and the employee was supposed to be working, the employee continued his discussions in favor of the union with other employees.  Boeing's supervisor met with the organizer and reminded him that he could not talk about or distribute fliers about the union during work time in a work area.  The employee was directed to Boeing's presumptively valid no-solicitation/no distribution rule.  The IAM filed an unfair labor practice charge, alleging that Boeing violated the law by banning discussions about union-related subjects while permitting other non-work talk (e.g, sports, weather, movies).  The Regional office of the Board filed a complaint and an administrative law judge agreed.  Boeing did not appeal.

The principle is not new and the ALJ cites several cases that were decided prior to the current Obama Board.  However, the application of the principle to real-life conduct in the workplace is murky at best. What is clear is that unions are more likely to raise the issue and the Regions are more likely to issue complaints alleging that the enforcement of a no-solicitation policy by a supervisor was actually prohibiting talk rather than solicitations.

Defenses based on an employer rule against discussing controversial issues (e.g., politics, religion, abortion, unions) because of a concern over abusive conduct arising out of such discussions have been unsuccessful for lack of proof that such talk, if fact, produced such unwanted behavior.  

The line between "talk" and "solicitation" is hard to draw and asks a lot of supervisors.  An invitation to a union meeting has been held to be just "talk," while, in pre-Obama Board cases, asking an employee to sign an authorization card, even where the card was not physically present during the discussion, has been  held to be solicitation.  It is questionable whether the Obama Board would go so far.  

Bottom line:  your supervisors must be trained in the differences between "talk," which cannot be prohibited unless all non-work discussions are prohibited (unrealistic), and "solicitation," which would violate a lawful no-solicitation rule.  If an employee is merely expressing an opinion about unions as good or bad, the chances are that the talk cannot be prohibited.  However, if the employee is seeking an immediate response from the listener ("sign a card"), the likelihood is that the employee is soliciting.  The space between these two extremes is great and many shades of grey.  

It is safe to say, the current Board will draw the line in the favor of limiting the enforcement of no-solicitation rules.   



Labor Board Launches Website Aimed at Non-Union Employees



On June 18, the National Labor Relations Board launched its new website directed at non-union employees.  The website,, is attached and directs readers to the Board’s agency website.  The agency website,, details the employee rights that are protected by the National Labor Relations Act (e.g., the right to belong to and promote union representation) and provides instructions about how to access the Board to obtain redress for employer violations of the law.


The website was originally intended to accompany the Employee Rights poster that the NLRB was set to require employers to post on April 30.  The Employee Rights poster is hung-up in litigation.


Visitors to the website are given eleven examples of instances where non-union employees sought assistance from the Labor Board and achieved reinstatement to employment and damage awards.  The examples all involve instances when the Labor Board was successful in getting discharged employees reinstated to their employment with full back pay or obtained significant settlements (in one case, $900,000) in return for refusing reinstatement.  These examples were as follow:


·                     An employee was discharged for posting on her Facebook page criticisms of her supervisor.


·                     An employee was discharged to keep her from talking to other employees about perceived wage rate unfairness.


·                     Employees were discharged for walking off the job in protest of a change in work rules.


·                     Employees who signed a petition protesting working and living conditions were threatened with deportation and then discharged.


·                     Employees were disciplined for asking to meet with a human resource representative to complain about a supervisor who they had discovered was a registered sex offender.


·                     Employees were discharged for sending a protest letter about a wage cut.


·                     Employee who discussed her wages with another employee was discharged


·                     An employee was discharged for refusing to divulge the names of the authors of an anonymous petition critical of senior management.


·                     Employees who signed a protest letter complaining about a wage cut were fired.


·                     Employees who raised safety concerns were fired.


·                     Employees were discharged for complaining on You Tube about unsafe working conditions.


Presumably, the Labor Board will add new examples with even more captivating fact patterns as they occur.  


Employers have been conditioned to examining each instance of discipline or discharge to ensure that the decision has not been tainted by illegal bias against a member of a protected class.  Employers must now include in that examination whether the decision implicates rights protected by the National Labor Relations Act.  The Labor Board is anxious to find as many examples as possible. 


Untrained managers and supervisors and rules of conduct that, for example, prohibit the disparagement the employer, use of the company logo, or inappropriate conduct risk place their employers at risk of another pin in the Labor Board’s map of malefactors.

Read my new article on the Labor Board's current campaign -- and how far it will go -- to educate non-union employees on their rights under the National Labor Relations Act in the June 15 issue of HREonline. 







































Federal Appeals Court Enjoins NLRB's Posting Rule


Today, the federal appeals court for the District of Columbia enjoined the NLRB from requiring that its Employee Rights poster be posted pending determination of the appeal filed by the National Association of Manufacturers from the decision by the federal district court of the District of Columbia upholding the NLRB's authority to require the posting of the notice.

Noting the decision of the district court of South Carolina's decision finding the posting requirement to be unlawful and the likelihood that the NLRB will cross appeal the NAM decision because of the court's denial of the power of the NLRB to enforce penalties for the refusal of an employer to post the notice, the Court of Appeals prohibited the implementation of the posting rule until after it had heard argument in September and decided all of the issues presently before it.

For now, employers who are subject to the NLRB's jurisdiction and who are not federal contractors can ignore the April 30 posting date for the Employee Rights poster. 

We will keep you posted about the poster.





Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful.  Judge Norton held:


Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”


In the opinion, the Judge excoriated the Board by noting that:,


“The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,”


As noted in my blog last fall when the proposed rule was first published, nothing in the National Labor Relations Act mentions, let alone authorizes the Board to compel employers to post, a notice advertising the protections of the Act for those employees who engage in or contemplate engaging in union activity.  Simply, even the Obama Board cannot ignore the law to further its partisan agenda.


The Board’s action was contrasted to the explicit authority granted by Congress to various other agencies to publish and require notices in non-remedial situations, e.g., employment discrimination, workplace safety.


This decision conflicts with an earlier holding by Judge Amy Berman Jackson of the federal district court of the District of Columba that upheld the Board’s authority to require the posting. 


Unfortunately, it is not entirely clear what the Board or the courts will do now.  The South Carolina decision is just that, a South Carolina decision.  It is possible that the Board may take the position that its effect will not go beyond that court's jurisdiction.  The district court of South Carolina is in the Fourth Circuit (Virginia, West Virginia, Maryland, North Carolina, South Carolina).  Consequently, unless you are in one of those states, the decision may not shield you from the obligation to post the notice by April 30.  However, it is possible that the South Carolina decision will be construed to have a broader application because it appears to enjoin the Board and its General Counsel from doing anything to enforce the rule.  

For now, employers who do not wish to voluntarily post the notice should wait until their obligation, if any, is further clarified or, at least, until after the Board indicates what it believes the application of the South Carolina decision should be.     


Hopefully, the Board will suspend generally the obligation to post the notice, pending the resolution of the discrepancy between the holdings of the District of Columbia and South Carolina district courts and other outstanding issues.  Most certainly, the Board will appeal the South Carolina decision, just as the DC decision has already been appealed.  What it will do or be permitted to do in the meantime is still unclear.


One can hope the Board will again delay the application of the rule to permit time for these issues to be resolved, but prudence suggest that we not depend on the realization of our hopes when it comes to this Labor Board. 

















In the waning days of Member Becker’s term on the National Labor Relations Board, the Board majority decided a case based on the underlying proposition that unions and employers are to be held to different standards when assessing the legality of pre-election literature and tactics. Enterprise Leasing Company and Teamsters Local 391, December 29, 2011.  


Teamsters Local 391 was seeking to represent the employees of an Enterprise Leasing operation.  A union supporter took a photograph of another employee with seven other employees of Enterprise in a nearby food court.  Subsequently, the photograph was printed on a flyer surrounding the words “Yes. Everybody can make the right choice?”  The other side of the flyer said the employees should vote for the Union to be their voice for better pay, better benefits and better treatment.”  


After losing the election, 44 to 41, with two challenged ballots, Enterprise filed an objection which alleged that one of the employees in the photograph had not agreed to permit his picture to be used on the union flyer and, therefore, there was a misperception created that the Union had the support of the employee and that the employee had been unlawfully subjected to coercion by being publically identified as a union supporter.  This, the employer asserted, was enough to warrant a new election, especially in light of the closeness of the vote.  


In finding that the flyer, at most, implied that the Union had the employee’s permission to use the photograph, a majority of the Board majority consisting of Chairman Pearce and Member Becker held that the other employees could easily recognize the flyer as campaign propaganda and, therefore, the election process had not been tainted.  The employer was not entitled to a rerun election. Citing a 2001 case that was enforced by the Third Circuit Court of Appeals, Allegheny Ludlum, Member Hayes, in his dissent, argued that the established rule that an employer cannot use the image of an employee in campaign material without the employee’s consent should be applied equally to the union in this case.  Elemental fairness, he reasoned, required the equal application of the rule to both the employer and union. In response, the majority cited a 1969 Fifth Circuit Court of Appeals decision in which the court wrote: “An employer in an unorganized plant, with his almost absolute control over employment, wages, and working conditions, occupies a totally different position in a representation contest than a union, which is merely an outsider seeking entrance to the plant.”  


So, for this Labor Board, there are two standards.  Because one of the objectives of the National Labor Relations Act is to equalize power in the workplace and to achieve this objective of the law, according to the current majority, one side should be permitted to spread misperceptions of support and coerce employees while the other should not.  Machiavelli cheers.  


The lesson: Do what you can keep a union from gaining sufficient support to compel a representation election in the first place by having a well-crafted union-free strategy with specifically designed policies and training.  If a union gets the support necessary to have an election, this Labor Board will not judge the pre-election campaign conduct of an employer and a union by the same rules, to the disadvantage of the employer. 



















On June 22, the National Labor Relations Board published a Notice of Proposed Rulemaking as the first step in its massive overhaul of election procedures.  This overhaul was obviously calculated to advantage organized labor’s organizing and disadvantage employers who wish to remain union free.


Between June 22 and August 22, the Board received over 65,000 comments and heard testimony from 65 witnesses, many, if not most, objecting to the proposed rule changes.


On August 23, then Chairman of the Board, Wilma Liebman’s term expired, leaving the Board with only three members, Democrats Becker and Pearce and Republican Hayes.  At the end of the current legislative session, Becker, a recess appointment, will have his term expire.  Upon the expiration of Becker’s term, the Board will lose the quorum (three) required for decisions and other official actions.  In short, the Board will be out of business.


Two weeks ago, the Board gave notice that it would issue a modified set of new rules governing election procedures on November 30, to beat the deadline before it loses its ability to act due to a loss of quorum. 


Hayes threatened to resign before November 30, claiming that the contemplated action was without his knowledge or participation in the process of determining what the new rules would be.  His resignation would deny the Board the legal ability to adopt the new rules because it would cease to have the necessary quorum.


Today the Chairman of the Board, Pearce, released the details of the rule changes that will be presented for final adoption tomorrow.  Hayes has not resigned and, in light of the lateness of the hour, it is unlikely that he will resign.  Consequently, the Board will have a quorum and the proposed rule changes in the Chairman’s Resolution will become final with Pearce and Becker passing them over the expected dissent by Hayes. 


In short, they rule changes that will be made final tomorrow are of only minor moment, especially when compared to what Becker, Pearce (and previously Liebman) and organized labor really wanted.  It appears that Becker and Pearce blinked in the face of Hayes’s threatened resignation and have deleted almost all of the most controversial changes that were proposed in June. 


The new rules will:


1.   Give the Board’s hearing officer the authority to limit evidence introduced at a representation hearing only to what the officer believes is material to whether a question of representation exists.  Issues ancillary to that question, such as those having to do with supervisory status or other questions challenging the eligibility of some employees to vote may not be permitted and certainly will not be allowed to delay the process.


2.   Give the hearing officer the authority to deny requests to file a brief on an issue raised at a representation hearing where the officer believes that a brief is not necessary to assist in making a decision on whether a question of representation exists.


3.   Delay the review of issues that are excluded by the hearing officer at a representation hearing until the post-election hearing, when, presumably, most would have been rendered moot by the election.


4.   Delete from the existing Rules the provision that provides for additional time between a representation hearing and an election to permit petitions to the Board to review decisions by the hearing officer.


5.   Permit appeals to the Board from decisions made at a representation hearing only in extraordinary situations where the appeal would otherwise evade review.


6.   Give the Board discretion to hear appeals in representation cases, regardless of whether the decision from which the appeal is taken is pre or post-election.


Not included in the rule changes to be finalized tomorrow (November 30) are the most controversial changes proposed on June 22:


·                     Electronic filing of petitions


·                     Requirement that representation hearings must be held within 7 days from the date of the notice of the hearing


·                     Requirement of a position statement at the outset of a hearing


·                     Preclusion of issues for trial post-election that were not included in the position statement filed at the representation hearing


·                     Inclusion of email addresses and phone numbers on voter lists


·                     Reduction in time for providing the voter list to the union from the current 7 work days to 2 work days



Chairman Pearce emphasized in his press release today, however, that the additional changes are still on the table and “remain under consideration by the Board for possible future action.”  Stay tuned. 


While the Board can be criticized for making decisions that do not reflect the real world, this much we now know – they have learned the definition of “hard bargaining,” thanks to Brian Hayes.


Even though the threat of the Board using its rule-making authority to tilt the field favorably in the direction of organized labor apparently has subsided for the time-being, we should be keeping a wary eye on Lafe Solomon, the General Counsel, and other actions the Board may take that do not rise to the level of formal rulemaking.  For example, the current guideline for Regional directors that elections must be held within 42 days from the date of a petition, absence extraordinary circumstances, is not part of any formal rule.  It is a guideline that can be changed without a lengthy hearing or comment process. 


Because of the continuing threat that the Board, either through its members or General Counsel, will take some action that will prejudice the ability of employers to combat union organizing, employers who wish to remain union-free should be doing those things now that are designed to neutralize and combat any appeal that a union may have to its employees.
































My blood chilled at the audacity of the plaintiff’s attorney. 

Our client had received a demand letter from him asserting that his client was a representative of a class of employees who were not paid for travel time.  The 100 employees in the putative class are employed to perform services at client sites and often travel to three or more such sites in a single workday. 

Upon inquiry, I discovered that the employer, while generous with payments for down time, did not track and, therefore, would have great difficulty proving that the employees were, in fact, paid for the time it took to travel between customer calls in a continuous workday.  While the employees were probably paid fairly, it would be a problem to prove they were paid in strict compliance with Pennsylvania’s Minimum Wage and Wage Payment Acts, which are similar to the federal wage and hour laws.  After calculating that the possible liability to the named plaintiff was only about $500, if any at all, I set up a meeting with the plaintiff’s lawyer to see how we could make the case go away.  What he said in that meeting serves as a caution to all employers, not just those with travel time issues..

I started the meeting by stating that, even if he were to prove liability and even if he were to prove that his client is a proper representative of the class of all service employees (both things I denied), the total liability would not be substantial enough to warrant litigation, especially since the employer was prepared to pay the employees in accordance with the law without it.  Further, the documents that would have to be reviewed to determine whether there was liability and the amount owed in each individual case were so many that the time necessary to make the determinations would far exceed any lawyer’s normal percentage of the possible recovery, typically about 40%.  In short, it would be in his interest to refrain from filing a lawsuit and resolving the issue of his single plaintiff quickly and expeditiously.

The plaintiff’s lawyer told me that he is not interested in the amount of liability and that he believes that the proper measure for his fee is not a percentage of the recovery but the alternative method of calculating a prevailing lawyer’s fee -- the time it took to litigate the case multiplied by his hourly rate.  He quickly volunteered that a court recently approved of the use of the alternative method and had found that his $425 per hour rate was reasonable.  Then the cold chill.  The lawyer continued by saying that he is in the business of finding big document cases in areas of the law where prevailing parties get attorneys’ fees and then running the clock.  He added that he knew this would be a big document case because he had a half dozen or so of the client's employees who had been his clients in other cases and had been providing him with information for months.  Based on what they had given him, he estimated that the liability would probably be about twice what I had estimated and, because of the way the employer keeps its records and the amount of time that would be necessary to determine what each employee is owed, that his fee would likely be in the $200,000 - $300,000 range.  He invited me to make the case as complicated as I could, since the more difficult we made it, the more he would profit.  When I expressed shock at the fact that neither any employee nor he, when a possible violation of the law had been first uncovered, informed the employer so that corrections, if necessary, could be made.  He smiled.

I was not shocked by the brazenness of the plaintiff’s lawyer.  I hate this type of profiteering by our profession as much as employer-victims hate it.  Nevertheless, I know that it is part of the current system.  What gave me the cold chill is the fact that the plaintiff’s lawyer had a prior relationship with several employees in similar cases and that these employees had been secretly providing him with information (and perhaps creating some to enhance the case) long before any claim was made.  Clearly, some, at least, were (and continue to be) salts. 

Employers have long been fighting the use by unions of professional organizers as salts to engage in organizing from the inside.  In large part, employers have been forced to endure the use of union salts because the National Labor Relations Board and U.S. Supreme Court have held that salts, in most situations, are protected by the National Labor Relations Act.  The same be true for salts used by predatory plaintiff’s lawyers in pay practice cases.  Not only may the salts be engaged in concerted activity protected by the NLRA, discharging or refusing to hire a salt would risk a retaliation claim under one of the wage payment laws that, in itself, may cause additional expense.

The best protection against plaintiffs’ lawyers and their salts is to understand the complex and counter-intuitive rules under the Fair Labor Standards Act and similar state laws to ensure that employees are paid properly and that your documentation is accurate and adequate.  Most vulnerable are pay practices that involve travel time, working in or through break periods and preparation for work (so called “donning and doffing” cases).  Many times liability turns not on the practice as much as the employer’s ability to prove that the employee was properly paid based on contemporaneous records.

Thought you would like to know.


DOL and NLRB Propose Rule Changes to Silence Employers and Help Unions Organize Workers



In a run-up to the 2012 election, organized labor will be pleased by two proposed rule changes, one by the Office of Labor-Management Standards of Department of Labor (OLMS)and one by the National Labor Relations Board, that will aid Unions in their organizing activities. 


OLMS proposes to narrow the advice exception to Section 203, LMRDA.


In 1959, Congress passed the Labor-Management Reporting and Disclosure Act (“LMRDA”).  Section 203(a) of the LMRDA requires employers to disclose in a public report filed with the OLMS any agreements or arrangements they may have with a labor relations consultant/lawyer to provide services that seek to directly or indirectly persuade workers in connection with a representation election or with regard, generally, to union organizing or bargaining.  Section 203(b) places a similar requirement on the consultant/lawyer.  Section 203(c), however, carves out an exception to the reporting obligation where the services rendered to the employer are for giving or agreeing to give “advice” to the employer regarding employee/employer rights with respect to union organizing or bargaining.


The extent and meaning of the advice exception has been hotly debated since the Acts passage.  Currently, and since 1962, OLMS’s interpretation and application of the exception has settled in to be that the only consultant/lawyer agreements and activities that have to be reported are those that involve direct contact with the employees…so-called “direct persuader” activities.  Advising an employer about union prevention and the engineering of a pre-election campaign, including the preparation of materials for use by the employer, are considered to be within the advice exception and not reportable, so long as the consultant/lawyer did not have direct contact with the employees and the employer had the right to accept or reject what the consultant/lawyer prepared.


It is this currently settled interpretation of the advice exception that OLMS seeks to change.  Under the proposed rule, any agreement with any consultant/lawyer for activities that include actions, conduct or communications on behalf of an employer that would directly or indirectly persuade workers concerning the employees’ rights to organize and bargain, regardless of whether or not the consultant/lawyer has direct contact with the employees or the employer has the right to reject the materials and activities provided by the consultant/lawyer, must be reported to the OLMS within 30 days from the date of the agreement.  The reports would be in the public domain and available on the OLMS’s website. 


OLMS, in a 160 page tirade against employers who seek to remain union-free, cites to numerous union-sponsored and academic studies that detail employer abuses as justification for the draconian narrowing of the advice exception it is proposing.  The premise underlying the entire report is the myopic view of organized labor that any effort by an employer through the use of external advice to remain union-free is an “interference” with the right of employees to engage in union or other concerted activity.  In reading the report, I was unable to find any recognition that many consultants/lawyers assist employers to create workplaces that are good places to work where employees feel no need for third party representation.  Further, I was unable to find any recognition that one of the services provided by the consultants/lawyers is to educate employees regarding what unions are, what unions can do and what unions cannot do as a counter weight to the propaganda and misstatements by union organizers. 


One of the most alarming aspects of the proposed expanded reporting requirement is that its application is not limited to consultants/lawyers who plan or orchestrate a campaign in response to active union organizing.  As is clear from the explanation, even such things as the cost of union-free training seminars, the development of personnel policies, and design of personnel systems at times when there is no active union organizing would be reportable as programs to avoid union organizing.  Only specific advice with regard to whether an identifiable course of conduct or employer-drafted policy/system comports with the law would be within the exception to the reporting rule.  The preparation of any document or speech intended in any form to be given to employees, together with the fees charged for such service or product, would have to be reported by both the employer and the consultant/lawyer, identifying each other. 


The Department of Labor OLMS takes particular aim at lawyers who engage in activities calculated to increase employee resistance to unions and specifically rejects the notion that an attorney’s business relationship with a client, as well as the identity of the attorney’s clients, is not covered by the attorney-client privilege. 


The stated justification for the need to change the OLMS’s interpretation of the statute is that the amount paid by an employer in union prevention activities and the source of the advice purchased by the employer will assist employees to assess the credibility/sincerity of the information, policy, or system and will enable the employees to make better and more informed decisions about union representation. 


If the proposed rule becomes a reality, unions will be able to publicize to the employees and the public any union avoidance efforts that an employer may undertake with the advice of a consultant/lawyer, the identity of both the employer and consultant/lawyer, and the amounts paid to the consultant/lawyer for his/her services in an effort to impugn the employer’s, the system’s and the material’s credibility.  Further, unions will be able to identify which consultant/lawyers are being used by which employers and seek, through publicity attacks, to interfere with what both the employer and the consultant/lawyer are seeking to accomplish.  By identifying the clients of specific consultant/lawyers, unions may launch negative campaigns against employers who use them for no better reason than that the consultant/lawyer has been effective and should be “shut down.”  By tracking the activities of specific consultant/lawyers, unions will gain information regarding employers that are engaged in activities that seek to neutralize the appeal of union representation.  Being thus “branded” as a “union-busting” employer, employers can be intimidated into ceasing such efforts and exposing their workforces to unopposed union organizing.


Of particular note is OLMS’s estimated cost of their proposed revision of the rule.  Currently, 191 employers file reports.  This number is estimated to swell to 2,601 employers.  930 consultants/lawyers file reports.  This number is estimated to become 3,414.  The time for completing the new and more involved report is estimated for employers to increase from 22 minutes to one hour and for consultants/lawyers from 35 minutes to 2 hours.  The cost to all employers is estimated to grow from $24,378 to $825,866.  Most staggering, however, is the increased cost to the government.  Currently, the Office of Labor-Management Standards spends about $6.5 million administering the collection and dissemination of all forms, including those filed by unions.  The cost of the new regulation for just the collection and dissemination of employer and consultant/lawyer forms is $185,719,212 due primarily to an increase in employee hours 4,420,458 hours, an FTE of 2,125 employees!

A failure to file the required reports carries criminal penalties and may subject the employer to civil enforcement.

A payback that keeps paying.


Public comments can be filed with the OLMS online at by August 22, 2011.



NLRB proposes rule to “streamline” and shorten union representation process:


On June 21, 2011, the majority of the National Labor Relations Board (Member Brian Hayes dissented) proposed what were termed “reforms” to the Board processes that are used to determine through a secret ballot election whether employees wish to be represented by a union.  The proposed reforms are intended to reduce “unnecessary” litigation, streamline procedures and facilitate efficiency by the wider use of electronic communications and filings.  What these reforms actually do is shorten the time between the filing of a petition for an election and the hearing to determine if an election should be held, increase the amount of information about the employees that an employer must give a petitioning union, shorten the time by which the employer must provide the information, limit the ability of employers to have issues resolved prior to the election and restrict access to the Board to review the issues decided prior to and after the election.


Electronic filings and transmittal of documents:  While we have found the practice of accepting documents electronically varies by Regions, the Board make the electronic acceptance of notices and documents, such as voter lists, to be standard at all Regions.  The most significant change here is with the filing of petitions and other notices.  Currently, petitions from unions seeking representation rights cannot be transmitted and filed electronically, although faxes may be used to send new petitions to employers.  Also, notices of hearings, both pre and post election, can be sent to the parties electronically.  Compelling electronic communications, the Board argues, will speed the process. 


Time for initial hearing on the election petition is shortened dramatically:  Currently, the initial hearing concerning the petition must be conducted within 12 days from the date of the service of the petition, absent highly unusual circumstances.  The proposal is to reduce that time period to 7 days (5 business days, assuming no holidays).  This shortening of the time to have the initial hearing is significant because of the importance of the issues that may be raised and resolved in that forum.  The union’s petition will identify the unit of employees it wishes to represent.  The employer may believe that the requested unit is inappropriate.  At the hearing, the employer must put on the record for decision of the Regional Director the reasons why it believes the requested unit is inappropriate and the evidence that supports that position.  The description of the employee unit may spell the difference between winning or losing an election.  In the time between the petition and hearing, therefore, the employer must decide whether the requested unit is appropriate for bargaining, whether the correct employees are included or excluded from the requested unit, assemble the evidence to support its various positions and prepare exhibits and witnesses for litigation.  If, at the time of the receipt of the petition, an employer has yet to identify its lawyer or other representative for the hearing, the time to define the issues and positions and trial strategy may be so short that the employer may find it impossible to advance its legitimate positions effectively at the hearing.  For the unsuspecting, unprepared and untutored employer, the short time between receipt of a petition and the establishment of when critical issues are resolved and an election date is set will probably mean that the employer will not have an effective voice and the process will be driven almost exclusively by the Board and the union.  This is not surprising since Board Member Becker is already on the record saying that he does not believe an employer has any place at the table when the definition of the voting group and date and time of the election are decided. 



Date specified for post-election hearing:  As noted later, the Board is pushing as many issues that require resolution, particularly the identity of eligible voters and determination of who is who is not a supervisor, to after the election is over.  While objections and challenged ballots are now handled routinely post election, it is noteworthy that objections need not be filed for seven calendar days after the election.  Hearings on the objections are often delayed for weeks to permit the Board to investigate the charges and the parties prepare for the hearing.  The Board proposes to require post-election hearings on all unresolved issues, including challenged ballots and objections to the conduct of the election, within fourteen days after the election, significantly hindering an employer’s ability to do investigations, discover evidence and prepare witnesses to testify.


Creation of a “statement of position form:”  The proposed rule would require both the union and the employer to file with the Board a written statement of their positions on issues that may be in dispute, presumably appropriateness of target unit, who is and who is not a supervisor, voter eligibility and date/time/place of an election.  This statement of positions must be filed with the Board no later than the start of the hearing, prior to the presentation of any evidence.  The failure to raise an issue in the statement of position would, in all likelihood, preclude the employer from raising it earlier or, at least, prejudice the employer in raising the issue after the election.


Delay of voter eligibility issues to post-election determination:  At the initial hearing, employers currently will seek to have issues of voter eligibility resolved, particularly those concerning the supervisory status of questionable classifications of workers, such as leads and head nurses.  Whether an individual is or is not a supervisor is critical to an employer at the outset of a campaign because the employer needs to know how to converse with and treat the individuals.  If the workers are employees under the law, there are significant restrictions in what and how things can be said to or asked of them.  If supervisors are not employees under the law, these restrictions do not exist.  The wrong choice by an employer and treatment of an employee as if he/she were a supervisor may invalidate an election that had been won.  Further, dealing with workers as supervisors may result in their not voting and the loss of “No” votes.  Under the new rule, questions of voter eligibility involving 20% or fewer of the proposed unit would be deferred until after the election and then in the context of challenged ballots.  Ballots not cast, of course, cannot be challenged.  By doing this, the Board places on the employer the greatest risk.  Employers faced with this risk often choose not to treat any of the individuals at issue as supervisors, thereby hampering the employer’s ability to campaign effectively.


Requests for review of Regional Director decisions:  Currently, if a Regional Director makes a decision at the initial hearing, for example a decision about the appropriateness of a unit for voting, the employer may appeal to the Board for a review.  Typically, an election will be delayed for a short time to permit the Board to rule on the appeal, even though an election date is set.  Under the proposed rule, all requests for review of Regional Director decisions would have to be delayed until post-election proceedings.  Consequently, employers will be denied certainty on important issues before employees vote on the question of representation. 


Board will have discretion not to review post-election decisions:  Not only would employers be required to wait until after an election to have Regional Director decisions reviewed, under the proposed rule the Board will have the discretion to refuse to review all pre and post election decisions by a Regional Director, effectively denying employers recourse to a review on the merits and leaving the only method of challenge to the expensive unfair labor practice process following a refusal to bargain.


The Excelsior List must include employee phone numbers and, when available, email addresses and must be supplied electronically within two days:  Currently, employers are obligated to provide to the Regional Office within seven days from the date of the direction of an election (or stipulation for a consent election) a list of employees in the proposed unit with their mailing addresses.  This list is then communicated by the Board to the union to enable the union to contact employees in their homes.  The proposed rule will not only require the employer to include in the list the employees’ telephone numbers and, when available, email addresses, but also require that the list be transmitted electronically to the Region within two days from the direction of an election (or stipulation to have an election).  The effect of this rule change is obvious: unions will have the list of employees earlier and be given an enhanced ability to campaign to employees in their homes. 




The take-away from both the OLMS and the NLRB proposed rule changes for employers is that both government agencies are intent on making union avoidance harder and union organizing easier.  What is most alarming, especially with the OLMS proposal and supporting material, is this apparently philosophical underpinning that any effort by an employer to create policies, systems or materials in an effort to educate employees about unions and to make unions unnecessary is, at its core, an effort to interfere with the right of employees to engage in union activity.  This apparent belief is not only wrong, but also is an outrageous denigration of the good faith and honest activities of employers who wish to build workplaces free of the economic drain and adversarialism that often accompanies unionization. 


Employers and employer organizations need to be vigilant and vocal about the further erosion of employer rights and the continuing interference in the way they choose to do business within the law.  Clearly, it is incumbent on employers to redouble their efforts to create personnel systems to educate employees about and to neutralize any interest employees may have in union representation.  If the employees see no value to union representation, the OLMS and Board processes are rendered irrelevant. 



The Fierce Fight Over A Label: Is The Obama National Labor Relations Board Really A Pro-Union Activist?

The Fierce Fight Over A Label: 


Is The Obama National Labor Relations Board A Pro-Union Activist? 



On February 11, 2011, the House Subcommittee on Health, Education, Labor and Pensions of the Committee on Education and the Workforce conducted an oversight hearing on the National Labor Relations Board.  At the hearing, several witnesses accused the Board of overreaching its statutory authority, invading the province of Congress and abandoning long-established institutional norms.  In short, they labeled the Board a “Union Activist.”

Both the Chairman of the Board, Wilma Leibman, and Acting General Counsel of the Board, Lafe Solomon, shot back denials, citing as evidence that Republican controlled Boards in the past had often reversed precedents and, therefore, turn-about is fair play.  Besides, they both implied, their interpretations of the National Labor Relations Act we long needed corrections of prior perversities. 

The debate over whether the Obama Board is an activist for unions or an equalizing hand, is not the point and I leave that labeling to the reader.  Here is a brief review of recent Board decisions that, based on your point of view, either steadied or rocked the boat…or, as some would argue, punched a hole in the bottom.  Whether an activist or a correctionist, the Labor Board demands the attention of all employers, unionized and union free:

Atlantic Scaffolding:


The employer was a nonunion contractor working on Exxon property to erect scaffolding for the use of other contractors during a “changeover” at Exxon’s refinery.  The changeover cost Exxon “millions of dollars” a day due to lost production and utilized over a thousand contractor employees. 

Employees of the scaffolding employer were upset about a change in wage policies and, on the first day of the changeover, staged a work-stoppage to force a reversal of the policy.  Employees who went off duty from one shift stayed on the premises to support about a hundred others from the on-coming shift who refused to work.  The striking Employees stayed in the lunch tent of the employer inside the refinery for about an hour (three hours for the off-duty employees) until Exxon told them to leave, transporting them to one of the parking lots on Exxon’s property.  They remained for another hour in the parking lot, until Exxon told them again to leave.  The strikers went to a vacant area that was still on Exxon property.  Three hours later, about five and half hours after the stoppage had begun, Exxon told them to leave its property altogether and the strikers moved to a public park.  On the following day, some of the strikers returned to work, but seventy continued the work stoppage.  On the next day, two days after the strike had started, the employer, having concluded that the employees were giving no indication of returning to return to work, terminated the employment of the employees.  With the aid of a union, the terminated non-union employees filed an unfair labor practice charge, alleging that they were discharged because of their exercise of rights (a concerted refusal to work) protected by the NLRA.  The work stoppage idled hundreds of contractor employees, in addition to the strikers.

After trial, an Administrative Law Judge (ALJ) held that, while the initial stoppage and delivery of a petition of protest was an exercise of protected rights, at some point over the five and half hours of in-plant work stoppage, causing extraordinary damages to Exxon, the employees lost their protections of the law and were at risk of discharge.  The ALJ cited prior precedents back to 1986 which established that in-plant work stoppages were protected for only a “reasonable” period of time and that, in at least one circumstance, a stoppage of as little as thirty minutes was beyond reasonable and lost the protections of the Act.  Here, since the strikers were on the property of Exxon for more than five and half hours, the ALJ found, their stoppage was clearly beyond reasonable.

The Board reversed the ALJ and held that, because the strikers were peaceful and did not cause disruptions to the work beyond those resulting from their nonperformance of work, the employees had been engaged in protected activity for the duration of the stoppage and could not be terminated without violating the NLRA.  The fact that the strikers had timed their work stoppage for when it would have the maximum impact, said the majority, was consistent with a basic principle of the statute, i.e., “the right of employees to withhold their labor in seeking to improve their terms of employment, and the use of economic weapons such as work stoppages as part of the ‘free play of economic forces’ that should control collective bargaining.”  The Board expressly refused to balance the rights of the property owner and the strikers.  The nonunion employees were entitled to reinstatement with back pay, retroactive benefits and interest compounded daily.

Stevens Media, LLC, d/b/a Hawaii Tribune-Harold:

A supervisor notified an employee that he wanted to meet with him.  A colleague told the employee that the purpose of the meeting was to give the employee a warning and recommended a witness.  The employee requested a witness, but the supervisor denied the request.  The employee called his union representative and asked for guidance.  The union representative advised him to attend the meeting and to take notes.  At the suggestion of other employees, however, the employee brought into the meeting a concealed recording device and recorded the meeting.  When the supervisor later learned of the recording, he suspended the employee for “defiance.”  The employer then issued a rule barring secret recordings of work-related meetings.

The Board, reversing the ALJ, found that the employee’s suspension violated the NLRA because the employee’s conferring with other employees constituted concerted activity and the secret recording was not so egregious that it removed the protections of the law.  The Board also held that the rule was invalid because it was promulgated in response to the exercise of protected conduct.  Although not necessary to decide the case, the Board went on to hold that the rule itself (not just its promulgation in the face of protected conduct) was illegal as “overly broad,” in that it prohibited employees from making secret recordings of matters relevant to the workplace. 

Mandalay Bay Resort & Casino


A union petitioned to represent a group of about 140 employees.  The election results were 110 for the union and 123 against representation with 4 challenged ballots.  The union filed 19 objections, all of which were dismissed after trial by the Administrative Law Judge.  On appeal, the Board reversed the ALJ and ordered a new election.  The Board held that the objection that the Employer had solicited grievances and impliedly promised to resolve one of them had merit, dictating the need for a rerun election.

During the campaign leading to the election, two senior officers of the Employer met with employees for the purpose of understanding work related issues and to talk about the union organizing.  During the course of one of the meetings, employees complained about the policy of using part time employees to reduce overtime opportunities for full time employees.  The officers responded that the policy was a failed strategy and that the situation was being “addressed and looked at.”  There was no evidence that either of the officers indicated what, if anything, would be done.  Nevertheless, the Board majority found that the statements “implied” a promise of a remedy that would favor the employees and that, because the officers of the company had not had similar employee meetings prior to the election campaign, the employees would “tend to anticipate improved conditions of employment which might make union representation unnecessary.”  Therefore, the election was tainted and had to be rerun. 

Jurys Boston Hotel:


At the expiration of the term of a labor contract, employees filed a petition to decertify the union.  In the campaign period prior to the election, the Employer maintained a cooperative position with the Union and even wrote to the employees expressing the fact that its relationship with the Union was positive.  In addition, the Employer instructed it supervisors to take neutral if not positive line concerning the Union in their conversations with employees.

Prior to the election, but not prior to the filing of the decertification petition, the Union filed unfair labor practice charges concerning seven rules of conduct that it stated violated the law, including an overbroad no solicitation rule, a prohibition against loitering on the property and a grooming standard that prohibited employees from wearing union buttons while at work in the hotel.  All of the rules were old and predated the initial recognition of the Union and the successful negotiation of the labor contract.  When the Union filed its charge, the Employer issued a memo to all employees that withdrew the rules and stated that no rule was intended to interfere with any employee’s legal right to engage in union activity.

The Union lost the election 47-46.  After trial, the Administrative Law Judge held that, while the rules violated the Act, no employee had been disciplined for disobeying any of them during the election period, and that there was no evidence that any employee had even read the rules, let alone that any of the rules had an impact on the election. 

The Board reversed the ALJ, holding “the three rules in question, individually and together, had a reasonable tendency to chill or otherwise interfere with the prounion campaign activities of employees during the election period.”  In making its decision, the Board gave no weight to the fact that the Employer had disavowed the rules prior to the election and had told employees that it did not want any rule to inhibit any employee from engaging in union activity.  The Board also gave no weight to the undisputed finding by the ALJ that the rules had no impact on the election.



A nurse complained about her wage rate.  When she continued to complain to her supervisor, the Employer terminated the employee because it was concerned that the employee would cause trouble in the workplace.  The employee had not discussed her complaint with any other employee, although another employee had told her that she and a relative had gotten raises. 

After trial, the ALJ held that the employee had acted on her own behalf and had not engaged in any concerted activity protected by the NLRA; therefore, her discharge did not violate the law.  The Board reversed the ALJ, stating that the discharge had been “pre-emptive,” because the employer was concerned that the employee may engage in concerted activity and that such “pre-emptive” actions violate the law.

American Medical Response:


The Company’s social media policy prohibited disparaging remarks about the company or any supervisor.  After an argument with a supervisor that led to discipline, an employee posted on her Facebook page that her supervisor was a “psycho.”  The employee was fired.  The Board issued a complaint against the employer, alleging that, because the comment related to the workplace, the employee’s conduct was protected by the NLRA.  The case was settled in February.



A manager of the Company solicited from employees suggestions on how to make the workplace better.  The local shop steward, using Twitter, replied that “One way to make this the best place to work is to deal honestly with Guild members.”  The supervisor met with the employee and told her that the comment was offensive.  The supervisor told the Board that she had felt “intimidated” by the supervisor.  The Board issued a complaint, alleging that the employee’s protected conduct was infringed by the supervisor.

Eliason & Knuth:


A union had a dispute with a non-union building contractor.  The contractor was doing work for both a restaurant and a hospital.  There or four union representatives held banners approximately four feet by twenty feet as close as fifteen feet in front of the restaurant and one thousand feet in front of the hospital.  In addition, union representatives conducted hand billing at both locations.  The banner in front of the restaurant said in large letters “Don’t Eat RA Sushi” and at the hospital “Shame on [name of hospital]”.  Flanking the words in the banner were the words “Labor Dispute” in smaller letters.  The handbills, but not the banners, stated that the "labor dispute" was with a non-union contractor and not the restaurant or the hospital themselves.

To threaten, coerce or restrain a company with which the union does not have a direct dispute in order to force the company to stop doing business with an employer with which the union has the direct dispute violates the secondary boycott provisions of the NLRA.  The Board held, however, that, since the banners were being held stationary, they were no more confrontational than are banners on the Fourth of July or which preceed a high school marching band.  Therefore, the union was simply informing the public of a dispute with the non-union contractor and did not threaten, coerce or restrain either the restaurant or the hospital to force them to stop dealing with the contractor.   

New Star General Contractors, Inc.


A union had a dispute with two general contractors.  During the dispute, the union wrote letters to the contractors’ customers asking them not to do business with the contractors.  The union also used large banners at 19 different sites where the contractors were working and, in some locations, put the banners in front of gates reserved for employees of the contractors’ customers. 

The Board found the conduct was legal and did not constitute “signal” picketing to the employees of the customers urging them not to work.  Therefore, it was not an effort to coerce the customers to stop doing business with the contractors.

Dana Corporation


The employer agreed with a union to be neutral to and cooperate with the union in its efforts to organize the employer’s employees.  In partial fulfillment of this commitment, the employer provided the union with the names and addresses of the employees and told its employees that it could work positively with the union.  In addition, the employer agreed to recognize the union based on a card check.  In return, the union agreed that any first contract would be for at least four years, would keep healthcare costs at competitive levels, would allow for mandatory overtime, would permit the company’s team system and would have bargaining differences resolved by an arbitrator, not a strike.

The Board found that the agreements did not constitute “dealing” with the union, but constituted a mere “framework” for a possible agreement.  Therefore, said the Board majority, the employer did not violate the provisions of the law that prohibit an employer from dealing with a union that has not proven that it represents a majority of the employees.  In effect, the Board approved of bargains by unions to obtain employer neutrality and cooperation agreements, giving the green light to further “corporate campaign” coercive conduct by unions to silence employers.



The Board has recently alleged that Boeing violated the law when it chose to put a production line in a non-union plant because of a history of multiple and long strikes at its unionized plant.  Simply, Boeing did not want the risk of production delays (and customer penalties) caused by work stoppages.  The Board asserts that a decision based on a history of work stoppages is in retaliation for the exercise of the protected right to strike.  Apparently according to the Board, Boeing is required by law to continue to operate in a manner that gives its unions the greatest leverage possible over its business.

General Counsel Actions:


On October 2, 2010 and November 1, 2010, Acting General Counsel Lafe Solomon issued two directives to the Regional offices of the Board.  In the first, he instructed the Regions to be on the alert for alleged illegal conduct by employers during union organizing and, when suspected, to seek permission to file for federal court injunctions requiring, for example, the interim reinstatement of an employee who was allegedly discharged for engaging in union activity. In his instruction, Mr. Solomon told the Regions to respond quickly and effectively to nip illegal employer conduct in the bud. 

In the second memo, the General Counsel expanded the kinds of cases that justify injunction applications to include such things as interrogations, surveillance, promises, threats and soliciting of grievances for the purpose of resolving them to affect union activity.  In addition, Mr. Solomon detailed several remedies, in addition to injunctions, that should be used in these “nip-in-the-bud” cases:

·                     Requiring a Notice of employee rights, including the right to form and join unions, to be read to the assembled employees by a senior officer of the employer or by a Board agent with the senior officer standing next to him/her.

·                     Giving the union access to company bulletin boards

·                     Requiring the employer to provide the contact information of all employees to the union

·                     Giving the union organizers access to the employer’s premises during working hours to speak with the employees

·                     Giving union organizers the right to attend and speak at any group meeting held by the employer during working hours to discuss union representation.

·                     Giving union organizers the right to deliver a pre-election speech in the workplace to the employees


Arguing about labels clouds the issue.  The Board may be engaging in pro-union activism or just leveling the playing field.  The label is in the eye of the beholder.  Whatever they are doing, however, the rules are changing and employers must be alert to the changes that affect them. 

In acknowleging this caution, it cannot be overlooked that we have yet to see promised decisions on the following issues:

·                     Restricting no solicitation/no distribution/no access and social media rules

·                     Narrowing the definition of supervisor

·                     Reducing the size of appropriate units to match the extent of union support

·                     Inclusion of agency employees into bargaining units of host company employees

·                     Posting the rights of employees to engage in union organizing and other concerted activities

·                     The legality of rules of conduct that “may” possibly “chill” union activity (e.g., confidentiality of wages and other terms and conditions of employment and disrespectful, harassing, disparaging, damaging and abusive conduct directed toward the company or any employee, to name a few) 


Anyone want to guess how those decisions will come out? 


Often ignored is the fact that the Board’s interpretations of the law are always retroactive.  For example, if the Board speculates that a particular rule may possibly chill union activity and, therefore, finds the rule unlawful, that rule will be found to have always been unlawful and any other employer with that same rule will be at risk for actions it took to enforce the similar rule, even though those actions predated the Board’s decision.  The Board doesn't say  “in thirty days this rule will be illegal.”  The employer always acts in its own peril when it comes to the Labor Board.


It's wise, therefore, for every employer to examine its workplace rules and practices in light of not only what the Board does but also what the Board may do.  That’s not an easy exercise, but, on the risk/benefit continuum, the exercise is worth it.


James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.