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:
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.
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.