After seeing its number one legislative priority — the artfully named Employee Free Choice Act (EFCA) — languish in the Senate, organized labor may have wondered where the return on investment was from the millions spent in the 2008 election cycle to elect a pro-labor president and solid democratic majorities in Congress. The answer, as many observers predicted once passage of EFCA began to seem unlikely, appears to be at the National Labor Relations Board (NLRB). The NLRB now has a three-member democratic majority of former union advocates who have begun to issue decisions on controversial topics that substantially favor union interests, and have telegraphed their intent to do more of the same. At the same time, the NLRB's acting general counsel recently announced new procedures and timelines for seeking injunctive relief under Section 10(j) of the National Labor Relations Act in cases involving unlawful discharges during union organizing drives, citing the "ineffective" nature of a reinstatement order following ordinary labor board processes. All of this activity points toward even more union-friendly decisions by the labor board in the months to come.
Beware the Banner
On August 27, 2010, the labor board issued a decision expanding the weapons labor can use to pressure neutral employers: permitting the display of large banners immediately outside neutral employers' places of business, so long as the union representatives holding them remain stationary and do not patrol back and forth like traditional pickets. United Brotherhood of Carpenters, Local Union No. 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (August 27, 2010). In the Carpenters case, the union displayed banners outside the workplaces of three neutral employers (two hospitals and a restaurant) to protest the use of nonunion contractors either at the neutral site or at another facility owned by the neutral company's parent. The banners were three or four feet high and ranged from 15 to 20 feet in length, and contained the typical "SHAME ON" condemnation of the neutrals, or in the case of the restaurant, "DON'T EAT RA SUSHI." The banners were held by union representatives who remained stationary, and were placed as close as 15 feet to the entrance of the neutral facility. Union representatives also distributed handbills to passersby explaining the nature of the dispute with the nonunion contractors and the union's belief that by utilizing those contractors, the neutral employers were destroying area standards.
The labor board majority held that such displays of stationary banners, unaccompanied by any picketing or other confrontational behavior did not "threaten, coerce or restrain" the neutral employers within the meaning of Section 8(b)(4)(ii)(B) of the Act. In doing so, the majority explained that nonpicketing conduct should be found to be coercive "only when the conduct directly caused, or could reasonably be expected to directly cause, disruption of the secondary's operations." This decision drew a stinging dissent from members Schaumber and Hayes, who criticized the majority for adopting a newly created standard focused on "disruption" of the neutral's business. According to the dissent, such a standard is contrary to the statutory text, which does not require any "proof of actual or potential loss or damage" to establish a violation of the Act. Moreover, the dissent asserted that the majority's "new narrow definition of picketing and their new requirement for a showing of actual or threatened disruption before other secondary activity will be found unlawful unquestionably augments union power," and contravenes both the purpose of the Taft-Hartley amendments and longstanding board precedent, by putting neutral employers "right back into the fray" of labor disputes between unions and their primary targets.
Employers should expect unions to push the envelope under the board's new standard. The bannering activity the labor board blessed in this case clearly has the potential to be disruptive. If a banner placed only 15 feet from a restaurant's entrance is not coercive, then unions may be emboldened to push even closer, to man the banner with more union representatives, or to try other more confrontational tactics. However, even under the board's new approach, blocking of entrances or massing of union representatives or patrolling back and forth will remain unlawful, and employers should carefully document other activities that accompany a stationary banner erected outside their places of business.
On Second Thought — Review of Bush Board Decisions
NLRB Chairman Wilma Liebman has made no secret of her distaste for any number of the Bush board's decisions, not just in dissenting opinions she wrote at the time, but in speeches and other statements she has given more recently. On August 27, 2010, the labor board issued two notices and invitations to file briefs in cases where the board granted review to address two of those decisions — the 2007 decision in Dana Corp. 351 NLRB 434 (2007), in which the board modified its recognition bar principles to allow employees a 45 day period following an employer's voluntary recognition of a union in which to file a decertification petition or to support a rival representation petition filed by another union; and the 2002 decision in MV Transportation, 337 NLRB 770 (2002), in which the labor board reversed the "successor bar" doctrine adopted in St. Elizabeth Manor, Inc. 329 NLRB 341 (1999), which had provided an incumbent union with a "reasonable period of time for bargaining" once a successor employer's obligation to recognize and bargain with the union attached before a decertification or rival representation petition could be filed. See Rite Aid Store #6473 and Lamons Gasket Co., 355 NLRB No. 157 (August 27, 2010) (recognition bar) and UGL-UNICCO Service Co. 355 NLRB No. 155 (August 27, 2010) (successor bar).
In each case, Chairman Liebman and departing member Schaumber wrote separate opinions trading barbs as to the wisdom and propriety of granting review. With respect to the decision to grant review in Rite Aid to revisit the recognition bar doctrine, as modified in Dana Corp., Schaumber (along with Hayes) argued that the actual experience under Dana Corp., which involved 1111 requests for voluntary recognition, 85 election petitions, 54 actual elections, and only 15 elections in which employees voted against the recognized union, demonstrates that the "Dana principles are working well," and that the labor board should not reverse that decision in response to the "mostly subjective and partisan claims" the dissenters anticipate the board will receive. Not to be outdone, Liebman shot back that she is "interested in what members of the labor-management community (and not just my fellow Board members) have to say about this data and its lessons."
The sparring continued in UGL-UNICCO, in which Schaumber expressed his concern that the majority's decision in that case, and other recent decisions, "augur movement toward an activist agenda that includes the likely reversal of several of the prior board's most important decisions." According to Schaumber, the law of successorship under the NLRA, including the absence of any "successor bar" doctrine, "is well-travelled and well-settled territory that needs no reconsideration." Liebman countered that she had dissented in MV Transportation, but she is "open to being persuaded either that my prior position was wrong or that even if MV Transportation was mistaken it should nevertheless be left in place."
Historically speaking, stare decisis, the principle of generally deferring to a past decision, even if one does not necessarily agree with that decision, has been given lip service by board members, but is often ignored or "imaginatively" skirted. Notwithstanding the present board's asserted desire to evaluate the "real-world" data and experience involving these decisions, the handwriting is on the wall. Employers should expect some resurrection of the successor bar doctrine and the elimination of the Dana Corp. procedures in voluntary recognition cases. Moreover, Schaumber is clearly correct that the labor board's decisions "augur movement toward an activist agenda," which will likely include the reversal of other Bush board decisions (many of which were, in turn, a reversal of Clinton or even Carter board decisions).
Injunctive Relief in the Context of Organizing Campaigns
On September 30, 2010, acting general counsel Lafe Solomon issued a memorandum (GC 10-07) to the NLRB's regional offices emphasizing that the general counsel's office will be focused on ensuring, "that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplace." According to the memo, such unfair labor practices are particularly troublesome because an employer "nips in the bud" its employees' efforts "to engage in the core Section 7 right to self organization." Moreover, an employer's discharge of a union organizer sends a chilling message to other employees that "they too risk retaliation by exercising their Section 7 rights," and deprives those employees "of the leadership of active and vocal union supporters." Because reinstatement following a hearing conducted pursuant to normal labor board procedures may not be ordered until substantial time has passed, and discharged employees may no longer desire reinstatement, the general counsel views those procedures as "ineffective to protect rights guaranteed by the Act."
To address this potential problem, the general counsel's memo outlines a timeline and procedures to be used in such "nip-in-the-bud cases" to ensure Section 10(j) injunctive relief is considered and pursued in a timely fashion. First, organizing campaign discharge cases should be identified "as soon as possible" after a charge is filed. A lead affidavit should be taken within seven calendar days of filing the charge, and all of the charging party's evidence should be obtained within 14 calendar days of filing the charge. If the evidence gathered supports a prima facie case on the merits and suggests the need for injunctive relief, the regions are instructed to notify the charged party that Section 10(j) relief is being considered and request a position statement on that issue within seven calendar days. A regional director should normally make a determination on the merits of the case within 49 days and make a decision on the need for Section 10(j) relief within the same time. Complaints should be issued quickly in these cases, and the general counsel's memo instructs the regions to schedule sufficient trial time to avoid the possibility of continuances. Moreover, the memo emphasizes that, "[n]either the discriminatees' lack of desire for interim reinstatement nor a union's abandonment of its organizing campaign are, in themselves, grounds to decline to seek Section 10(j) relief."
Concurrently with the issuance of this memo from the acting general counsel, Chairman Liebman issued a statement that the board members have also reviewed the labor board's procedures for Section 10(j) cases to expedite the process for authorizing the regions to seek injunctive relief.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
