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Now at full strength, will NLRB continue anti-business bias?

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in Employment Law,Human Resources

by Hal Coxson, Esq.

Now that it’s finally back in business, the National Labor Relations Board (NLRB) has issued several controversial and decidedly anti-business decisions.

You may recall that the U.S. Supreme Court recently ruled that NLRB decisions made while there were just two board members are invalid. Those old cases and all new ones are now being heard by a new set of board members, three of whom are former union lawyers. (See “With EFCA on the ropes, unions shift their focus to the NLRB”.)

Overturning elections

Many of the new board’s recent decisions have expanded interpretations of “protected concerted activity.”

For example, several cases have dealt with lost union elections—and show that the NLRB is looking closely at the employer’s conduct leading up to the contested election. The NLRB has overturned election results based on the union’s objections and ordered new elections. But it seems much more reluctant to redo an election when the employer claims impropriety.

Targeting neutral employers

The new board majority ruled that it’s permissible for workers to display large union banners—including some featuring giant inflatable rats—outside a neutral business, with the goal of preventing that company from doing business with a “primary” employer that is the real target of the union’s labor dispute. The board held that “bannering” is similar to “handbilling,” and not akin to unlawful picketing of a neutral employer under the National Labor Relations Act’s secondary boycott prohibitions.

The practical result is that employers that don’t themselves have labor problems are pulled into a union’s fight with another company. The case is Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (Aug. 27, 2010).

2 key questions on agenda

Two controversial issues remain on the NLRB agenda:

1. When employees have chosen union representation without holding a secret-ballot election, do other employees have a right to file a petition seeking a vote to decertify the union?

Two cases (Rite Aid Store #6473 and Lamons Gasket Co.) ask the NLRB to reconsider a 2007 decision in Dana Corp., 351 NLRB 434.

In that decision, the NLRB majority held that when an employer agrees to voluntarily recognize a union based on signed authorization cards, it must post a notice advising the employees that they have a right to file a petition calling for an election to decertify the union or in support of a rival union. If the notice is not posted, neither the union nor the employer may later claim that their subsequent contract bars a petition by a rival union or for decertification for the three-year “contract bar.”

2. What should happen vis-à-vis union representation when one company takes over another and hires most of the former employees?

Two cases (UGL-UNICCO Service Company and Grocery Haulers, Inc.) seek review of a 2002 decision in MV Transportation, 337 NLRB 770. That case addressed the duties of a successor employer—one that takes over its predecessor’s business and hires primarily from its workforce—toward an incumbent union.

MV Transportation held that the employer’s obligation to recognize and bargain can be challenged by the employer, employees or a rival union. The MV Transportation decision in turn reversed the Board’s 1999 decision in St. Elizabeth Manor, Inc. 329 NLRB 341, which held that an incumbent union is entitled to a reasonable period of time for bargaining without challenge to its status. This was known as the “successor bar doctrine.”

We will soon know whether the NLRB will stick with its previous rules or throw them out.


Author: Hal Coxson is a principal with Ogletree Governmental Affairs and a shareholder in the law firm of Ogletree Deakins in the Washington, D.C., office.

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