NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C. 20570
|FOR IMMEDIATE RELEASE
|Wednesday, September 3, 2003
NLRB GENERAL COUNSEL ARTHUR ROSENFELD
ISSUES REPORT ON RECENT CASE DEVELOPMENTS
National Labor Relations Board General Counsel Arthur F.
Rosenfeld today issued a report on casehandling developments in the Office of
the General Counsel. The report covers selected cases of interest that were
decided during the period from January 2003 through June 2003. It discusses
cases that were decided upon a request for advice from a Regional Director or on
appeal from a Regional Director's dismissal of unfair labor practice charges. In
addition, it summarizes cases in which the General Counsel sought and obtained
Board authorization to institute injunction proceedings under Section 10(j) of
the National Labor Relations Act.
(The General Counsel's report can be accessed in the
press releases area of the NLRB web site: www.nlrb.gov
or copies can be obtained by contacting the Division of Information at
# # #
REPORT OF THE GENERAL COUNSEL
This report covers selected cases of interest that were
decided during the period from January 2003 through June 2003. It discusses
cases which were decided upon a request for advice from a Regional Director or
on appeal from a Regional Director's dismissal of unfair labor practice charges.
In addition, it summarizes cases in which the General Counsel sought and
obtained Board authorization to institute injunction proceedings under Section
10(j) of the Act.
Arthur F. Rosenfeld
EMPLOYER INTERFERENCE WITH PROTECTED
Withdrawn Lawsuit Not Presumptively
In this case, we decided that an allegedly unlawful
lawsuit was not presumptively baseless merely because it had been voluntarily
The Unions and the Employers began negotiations for a
bargaining agreement which they agreed would cover a multiunion/multiemployer
bargaining unit. The parties also agreed that when the membership of the Unions
voted on the Employers' final offer, "all votes of the involved employees
of the Employers shall be pooled with a single overall acceptance or
rejection." When the Employers presented their last, best and final offer,
the Unions recommended that their membership reject it. The Unions then began
conducting membership meetings to discuss and vote upon the offer. The Unions
announced that the voting would be completed by October 7, and that if the offer
was rejected by a two-thirds majority, a strike could commence at any time
On October 3, one of the Employers filed a Section 301
lawsuit against the Unions alleging that they had violated the voting agreement
by engaging in voting irregularities during contract ratification. The Employer
alleged, for example, that Unions had permitted friends and family of Union
members to vote; permitted certain employees to take as many as five ballots to
vote more than once; and permitted an employee to cancel his initial ballot and
cast another vote. The Employer sought damages and an injunction barring the
Unions from "taking any action" based on a vote conducted in violation
of the parties' voting agreement.
On October 8, the Unions announced the results of the
contract ratification voting. Sixty percent of the votes were against
ratification, a number insufficient to authorize a strike. On October 12,
following additional negotiations, the parties reached agreement on a contract.
The Employer then voluntarily withdrew its lawsuit claiming that it had become
moot once the parties had settled on a collective- bargaining agreement.
We decided that the lawsuit was not presumptively baseless
even though the Employer had withdrawn it.
In Vanguard Tours, 300 NLRB 250 (1990), enf. denied
in pertinent part 981 F.2d 62 (2d Cir. 1992), the Board held that an employer's
withdrawal of a lawsuit, without a judgment on the merits, was presumptively an
admission that the suit lacked merit, i.e., was "baseless" and thus
possibly unlawful. The Board placed the burden upon the employer of rebutting
this inference that its withdrawn suit was baseless. However, the Supreme Court
subsequently held that a completed lawsuit may be reasonably based even though
it is ultimately unsuccessful. See BE&K Construction Co. v. NLRB, 122
S. Ct. 2390 (2002). Even though an unsuccessful lawsuit may have attacked
activity that was ultimately determined to be protected under the Act, the suit
nevertheless enjoyed First Amendment protection if the plaintiff reasonably
believed that the conduct was unprotected and illegal. The Court therefore found
that unsuccessful or meritless lawsuits were not necessarily baseless.
We decided that the Vanguard Tours rationale
impinged upon genuine First Amendment petitioning and did not survive BE&K
Construction. We therefore concluded that the Employer's lawsuit was not
presumptively baseless even though the Employer had voluntarily withdrawn the
Lawsuit Filed to Impose Costs of
In another BE&K Construction case, we decided
that the Employer's lawsuit against an employee for allegedly misrepresenting
his ability to perform a job to which he was reinstated pursuant to a Board
order was baseless and retaliatory. We further decided that, even if the lawsuit
was reasonably based, it was still unlawful because it would not have been filed
but for a motive to impose the costs of litigation on the employee, regardless
of the outcome.
The Board had found that the Employer's earlier
termination of the employee had violated Section 8(a)(3) and had ordered the
Employer to offer reinstatement and remit backpay. Shortly after returning to
work, the employee refused on several occasions to do certain of his job tasks,
implying that health problems prevented him from performing those tasks. The
Employer again discharged him. We concluded that the second discharge was lawful
because it was for insubordination.
After a circuit court enforced the Board's order of
backpay for the employee's first discharge, the Employer filed a Chapter 7
bankruptcy petition claiming to have no assets. The Employer then created a new
corporate entity which proceeded to satisfy all of the Employer's other debts,
but not the Board's backpay order. The Employer never notified the Board, as a
creditor, about the transfer of its assets to the new company even though that
notice was required under the Bulk Sales Act. The Employer's owner later
admitted that he had filed the bankruptcy petition to avoid paying backpay.
Under the threat of a trustee- initiated Bulk Sales Act suit, the owner agreed
to satisfy the backpay obligation by paying the judgment in full with interest.
The same day that the Employer paid the judgment, it filed
a state court civil action against the employee seeking $20,000 in compensatory
damages and $100,000 in punitive damages. The state court complaint alleged that
the employee had stated at the time he was rehired that he was physically and
mentally capable of performing the job, when he knew or should have known that
he was not physically and mentally able to perform. The complaint further
alleged that, during the short period of his reinstatement, the employee caused
disruptions in production which cost the Employer $5,000 per week, and that the
employees' actions in failing to perform his duties were malicious entitling the
Employer to $100,000 in punitive damages. The Employer later explained that the
compensatory damages were the employee's wages and benefits for the duration of
his re-employment, plus an hour per day of extra supervision, two hours per day
of another management personnel's time, and one hour per day of the distracted
In deciding that the suit was baseless, we first
determined, under applicable state law, that the lawsuit was alleging a breach
of contract and not a tort. We next determined that the damages that the
Employer was seeking - wages, benefits, and other consequential
"damages" plus punitive damages - were not recoverable under a breach
of contract lawsuit. Even assuming that the Employer had filed a technically
viable lawsuit, that lawsuit was essentially baseless because the Employer had
failed to demonstrate that it could recover any of the damages it sought.
We then decided that the lawsuit was retaliatory under Bill
Johnson's Restaurant v. NLRB, 461 U.S. 731 (1983). The lawsuit was baseless,
sought punitive damages in an amount five times the alleged compensatory
damages, and reflected the Employer's prior animus against the employee's
exercise of Section 7 activity. The timing of the lawsuit, filed only one week
after the Employer finally agreed to pay the backpay it owed and more than four
years after the alleged damages occurred, demonstrated retaliation against the
employee for exercising his protected right to file charges with the Board. We
also noted that the Employer's owner specifically stated that he had filed for
bankruptcy in order to avoid paying the employee's backpay.
Finally, we decided that the Employer's filing of a
lawsuit with no chance of yielding financial recovery indicated that the suit
was filed to impose the costs of litigation on the employee. The Employer
continued to maintain the lawsuit even though it received an affidavit from the
employee declaring that his health had deteriorated to the point that he needed
a kidney transplant, he had no assets, owed a significant amount of debt, was
being supported by social security disability payments, and could not pay any
court judgment. Under these circumstances, there was sufficient evidence to find
that the suit would not have been filed but for a motive to impose the costs of
litigation on the employee, regardless of the outcome of the suit. Therefore,
even if the suit were reasonably based, it violated Section 8(a)(1) of the Act.
Rights of Employees of a Contractor
Working on Another Employer's Property
In two related cases remanded to the Board by the D.C.
Circuit Court of Appeals, we took the position that employees of a contractor
working on another employer's property retain their rights as employees when
dealing with their own employer, but may be treated as nonemployees when they
deal with the property owner employer.
New York New York, LLC ("NYNY"), a hotel and
casino complex in Las Vegas, Nevada, contracted with Ark Las Vegas Restaurant
Corp. ("Ark") to operate restaurants and fast food outlets inside the
NYNY complex. The Union, which represented some of NYNY's employees, began a
campaign to organize the Ark employees working on NYNY's premises.
In July, 1997, three off-duty Ark employees stood in an
area located just outside the main entrance to the casino and began distributing
handbills to NYNY customers. The handbills stated that Ark had no Union
contract. A NYNY official first told the Ark employees that they were
trespassing, and then had them escorted off the premises by the police.
In New York New York I, the Board found that NYNY
violated Section 8(a)(1) of the Act when it prohibited the employees of Ark from
distributing the handbills to customers in the sidewalk area just outside the
main entrance to the casino. 334 NLRB No. 87, slip op. 9-10. The Board explained
that "employees of a subcontractor of a property owner who work regularly
and exclusively on the owner's property are rightfully on that property pursuant
to the employment relationship, even when off duty." The Board noted that
Ark's employees were not strangers, such as nonemployee union organizers, who
NYNY may treat as trespassers.
In April, 1998, four off-duty Ark employees stood on
NYNY's property just outside the entrances to two restaurants operated by Ark
and began distributing handbills to both ARK and NYNY customers. NYNY's security
personnel told the Ark employees that they were trespassing on private property,
and escorted them out of the complex.
In New York New York II, the Board again found that
NYNY violated Section 8(a) (1) when it prohibited Ark's employees from
distributing handbills in front of Ark restaurants located inside the NYNY
complex. 334 NLRB No. 89, slip op. 8. The Board again explained that "the
off-duty Ark employees who took part in the handbilling ... inside the casino
... were not trespassing when they did so, but were lawfully on [NYNY's]
premises pursuant to their employment relationship with Ark."
The U.S. Court of Appeals for the District of Columbia
Circuit consolidated New York New York I and New York New York II
and decided both cases in a single opinion. New York New York, LLC v. NLRB,
313 F.3d 585 (D.C. Cir. 2002). The Court first noted that the Board's two
decisions were supported by previous Supreme Court cases which drew a
distinction "between invitees and trespassers." However, the Court
then stated that the Supreme Court's more recent decision in Lechmere, Inc.
v. NLRB, 502 U.S. 527 (1992) ("Lechmere"), undermined that
distinction by reaffirming the principle that the Act confers rights upon
employees, not nonemployees, and that employers may restrict nonemployees'
organizing activities on employer property. The Court therefore remanded the two
cases so the Board could explain why, in areas within the NYNY complex but
outside of Ark's leasehold, Ark's employees should enjoy the same rights as
NYNY's own employees. The Board directed supplemental briefing on the remanded
We first took the position that the Ark employees had full
employee rights, even though they were working on NYNY property, to the extent
they were attempting to deal their own employer. There was no question that if
the Ark employees' workplace had been on Ark-owned property, the Ark employees
would have been entitled to distribute union literature on that property.
Allowing a property owner to post its property against all self-organizing
activity by employees working on its premises, even when those employees were on
their own time and in nonworking areas, would have the effect of denying to
those employees the right to exercise core organizational rights at their
regular jobsite. We therefore argued that employees working on another
employer's property should retain their rights as employees when they seek to
deal only with their own employer or their fellow employees.
We then took the position that employees working on
another employer's property may be treated as nonemployees when they deal with
that employer. Treating Ark employees as nonemployees to the extent that they
attempted to deal with NYNY takes into account the Court's concern for the legal
principles affirmed in Lechmere, i.e., that "an employer cannot be
compelled to allow distribution of union literature by nonemployee organizers on
This was not the approach that the Board has taken in the
past. We therefore argued that the Board should overrule prior cases holding the
contrary, see e.g., Gayfers Dept. Stores, 324 NLRB 1246 (1997). The Board
could then allow NYNY to treat Ark's employees as nonemployees to the extent
they used NYNY's property to deal with NYNY, i.e., to appeal to NYNY's
customers, while requiring it to accord Ark employees their full employee rights
to the extent Ark employees attempted to use NYNY's property to deal with Ark or
with their fellow Ark employees.
Announcing Changes in Employee Benefits
Immediately Before an Election
In our next case, we decided that the Employer unlawfully
announced changes in employee benefits two days prior to a Board election.
The Union represented a unit of production and maintenance
employees at one of the Employer's facilities. On September 11, the Union filed
an election petition to represent a residual unit of about 50 employees. The
election was scheduled for October 16. The Employer previously had announced a
comprehensive review of all employee benefit plans and programs in order to
develop one benefit design. The Employer had indicated at that time that the
details of the new employee benefits program would be communicated by September
On September 30, the Employer distributed a memorandum
that "highlighted" the employee benefit changes, including a number of
benefits enhancements, which would take effect the following January. The
memorandum stated that the specifics of the new benefits would be revealed at
meetings at each facility from mid-October through November 3.
On October 2, the plant manager at the facility in the
instant case told employees that their insurance plan, holidays and vacations,
and the 401K plan all would be better under the new plan. He said that a package
would be delivered to employees by the end of October but that he could not
discuss specifics because of the upcoming election. He further said that if the
Union got in, then "we" (the Company and Union) would have to
negotiate a plan.
On October 14, two days before the election, the Employer
held a meeting at the facility in the instant case to explain in detail the
changes in the various plans. Within the next two weeks, the Employer made
similar presentations at its other facilities. The Employer offered an
explanation as to why its presentations were timed between mid-October and
November 3. However, the Employer did not explain why the facility in the
instant case was chosen for the first presentation, occurring immediately before
the election. After the election, some employees stated that they had voted
against the Union because they liked the Company's newly announced health
In Mercy Hospital, 338 NLRB No. 66 (2002), the
Board held that, ven if an employer develops benefit changes independent from a
union organizing campaign, "an employer cannot time the announcement of the
benefit in order to discourage union support, and the Board may separately
scrutinize the timing of the benefit announcement to determine its
lawfulness." The Board "will infer that an announcement or grant of
benefits during the critical period [of an election] is coercive, but the
employer may rebut the inference by establishing an explanation other than the
pending election for the timing of the announcement or bestowal of the
benefit." Id., sl. op. 2.
Here, the Employer announced the details of its benefits
changes at this facility two days before the election. The Employer did not
present any evidence justifying its choice of this facility as the first
facility to announce the changes. We therefore decided that the Employer had not
rebutted the inference that its announcement was timed to discourage employee
support for the Union at this facility, in violation of Section 8(a)(1) of the
Oral Agreement for Superseniority
In another case we decided that the Employer lawfully
granted superseniority during a layoff to the local union president based on a
previous oral agreement with the Union.
The parties' written collective-bargaining agreement
contained clauses referring to seniority and layoff, but contained no clause
referring to superseniority. The former local union president then negotiated an
oral modification to that agreement. The oral modification provided that the
former president would be taken off his regular production shift and spend his
entire work time adjusting grievances and administering the bargaining
agreement. This oral agreement was never reduced to writing nor formally
announced to unit members. However, the parties' agreement allowed for the oral
modifications, and the employees were aware of the special status granted to the
Our case arose when the current local union president was
not laid off, even though his department was shut down, because there was work
for him to perform as union president. The former union president who had
negotiated the oral modification filed the charge in our case alleging that the
Employer had unlawfully accorded superseniority to the current union president.
We decided that the Employer's granting of superseniority
to the current union president was lawful under the oral modification to the
bargaining agreement because the modification allowed the local union president
to work full-time administering the agreement and process grievances. See Gulton-Electro
Voice, Inc., 266 NLRB 406, 408 (1983), enf'd 727 F.2d 1184 (D.C. Cir. 1984).
The bargaining agreement also allowed for oral modifications. We were concerned,
however, that a secret agreement governing superseniority would violate
principles of good labor policy. The Board and the courts have expressed
problems with secret agreements that contradict fundamental terms of a ratified
contract. See, e.g., Merk v. Jewel Food Stores, 945 F.2d 889, 893 (7th
Cir. 1991),cert. denied, 504 U.S. 914 (1992).
Although the agreement in our case was oral and not
written, we decided that it was lawful and had not been kept secret. Employees
were not unaware that the Union president was assigned to work full time on
grievance handling and contract administration. Moreover, the former union
president who had negotiated this oral agreement was the Charging Party in our
case. Finally, no other unit employee was laid off or lost work on account of
the grant of special status. We therefore decided to dismiss the charges in this
EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH
Discontinuing Dues-Checkoff After
In Hacienda Hotel, 331 NLRB 665 (2000), enf. denied
sub nom. Local Joint Executive Board of Las Vegas v. NLRB, 309 F.3d 578
(9th Cir. 2002), the Board held that the Employers did not violate Section
8(a)(5) by discontinuing dues-checkoff after the bargaining agreements expired
where those contracts contained no union-security clauses. The Ninth Circuit
Court of Appeals remanded the Board decision, and the Board ordered supplemental
briefing on the remanded issue.
We took the position before the Board that its original
decision was justified. However, we also offered an alternative rationale if the
Board decided to reverse its original decision.
In Hacienda Hotel, the Board relied on the long
line of cases following Bethlehem Steel, 136 NLRB 1500 (1962), which held
that an employer's dues-checkoff obligation does not survive contract
expiration. Bethlehem Steel does not, however, discuss the effect vel
non of a union security clause on this holding.
The dues-checkoff exception to the usual rule against
unilateral changes after contract expiration was originally developed in the
context of a contract containing both union-security and dues-checkoff. The
Board explained, however, that it had since "clearly come to stand for the
general rule that an employer's dues-checkoff obligation terminates at contract
expiration." 331 NLRB at 667.
The Ninth Circuit vacated the Hacienda Hotel
decision finding that the Board failed to supply an adequate rationale for
departing from the usual rule. The Court pointed out that, unlike Bethlehem
Steel, the bargaining agreements in these cases contained no union-security
clauses, and the Board has never supplied a rationale for its finding that dues-checkoff
survives contract expiration absent a union-security clause. Some of the earlier
Board cases rely on Bethlehem Steel's rationale that a dues-checkoff
provision "implement[s]" a union-security clause, while others have
noted that Section 302(c)(4) permits dues- checkoff only when there is a valid
contract in effect. The Court noted that the Board could reach the same decision
on remand provided that it offered a reasoned explanation for departing from the
usual rule against post contract expiration changes.
In our supplemental brief on remand, we offered the
following rationale to support the Board's original decision: because dues-checkoff
implicates an employee's Section 7 right to refrain from assisting a union, and
Section 302(c) (4) requires that the terms of an employee's dues deduction
authorization be honored, an employer cannot continue dues-checkoff after
contract expiration where the contract itself ties dues-checkoff to the term of
the agreement. The Board should recognize that dues-checkoff, like
union-security, is a creature of contract because dues-checkoff is rooted in
both the employee Section 7 right to assist or refrain from assisting a labor
organization and also in Section 302(c) (4)'s requirement that the terms of an
employee's dues deduction authorization be specified and honored. The Board
should not infer that employees intended to continue to support a union through
dues deduction when a bargaining agreement explicitly provides that dues
deduction ends when a contract ends. That decision should be left to the
employees who rely on the terms of the bargaining agreement. In our case, where
the dues-checkoff agreements provided that the employers would deduct dues only
"during the term of the Agreement," the dues-checkoffs should end when
the contracts ended.
We also suggested an alternative rationale if the Board
desired to reverse its prior decision and find that there is an insufficient
basis for excepting dues-checkoff, even absent union-security, from the general
rule prohibiting unilateral changes after contract expiration. If the Board
believed that the rationale articulated above, based on the policies of Section
7 and Section 302(c)(4), does not provide a sound statutory or policy basis to
except dues- checkoff from the general unilateral change rule, the Board could
reverse its prior decision and, following the analysis of the Hacienda dissent,
could find that there is no statutory or policy justification for excluding
dues-checkoff from the general rule that after a contract expires, an employer
cannot unilaterally change dues-checkoff without bargaining to impasse.
UNION DUTY OF FAIR REPRESENTATION
Financial Disclosure of Affiliate
In another case, we decided that a local union violated an
objecting nonmember's rights under Beck (Communication Workers of America v.
Beck, 487 U.S. 735 (1988)) by failing to an explain how its affiliates spent
the per capita dues money which the Local sent them.
The Local provided objectors with a proper Beck
disclosure which specified a category for per capita taxes that was allocated as
partially chargeable. The Local provided a separate breakdown naming four
affiliates to whom it sent per capita taxes. This breakdown disclosed the amount
each affiliate received, and the amount each affiliate allocated as chargeable.
The Local used the percentages of chargeability supplied by each affiliate to
allocate the portion of chargeable financial assistance to that organization.
The Local provided the complete financial disclosure statement of only one of
these affiliates, the International Union. The Local did not provide financial
disclosure statements for its other three affiliates, nor did it provide any
explanation of how those affiliates spent the per capita dues money the Local
The International's financial disclosure statement set
forth several subcategories of charges and the amounts the International
allocated as chargeable. The disclosure allocated as fully chargeable the
amounts the International forwarded to its own affiliates. However, the
International did not provide the financial disclosures of any of these
Under California Saw and Knife Works, 320 NLRB 224
(1995), enfd. 133 F.3d 1012 (7th Cir. 1998), cert. denied 525 U.S. 813 (1998) a
union complies with its duty of fair representation by providing objectors with
sufficient financial information "to enable objectors to determine whether
to challenge" the union's calculation of chargeable dues. A union need not
disclose all of its expenditures but need only disclose "major
categories" of expenditures. Thus, where the Union here provided summaries
of its affiliates' expenditures, which disclosed major categories of union
expenditures, the Union did not violate its duty of fair representation even
though the summaries did not include supporting schedules and audits.
Following California Saw, the Board has held that a
union need only provide objectors with the amount transferred to affiliate
organizations and the percentage chargeable to the objectors. But in Penrod
v. NLRB, 203 F.3d 41 (D.C. Cir. 2000), rev'g Teamsters Local 166 (Dyncorp
Support Services), 327 NLRB 950, 954 (1999). The D.C. Circuit reversed the
Board's decision in Dyncorp. The court held that if an affiliate
allocated any portion of the union's contributions as chargeable, the union was
required to provide an explanation of how that affiliate used those funds. On
remand from the D.C. Circuit, the Board accepted the court's decision as the law
of the case but did not explicitly adopt the D.C. Circuit's rationale. Teamsters
Local 166 (Dyncorp Support Services), 333 NLRB No. 141, slip op. at 1
(2001). The Board subsequently indicated that it still agreed with its decision
in Dyncorp though it was not required to reach the issue. Office
Employees Local 29 (Dameron Hospital Assn.), 331 NLRB 48, 50 fn. 8 (2000).
Thus, while it appears that the Board adhered to its decision in Dyncorp,
the Dameron Board did not clearly reject the D.C. Circuit's decision in Penrod
because the union had in fact provided the complainant with the International's
In our case, the Union provided the International's
financial disclosure but failed to provide any indication as to how its other
affiliates spent the percentage of money that they allocated as chargeable.
While this would appear sufficient under the Board's decisions in Dyncorp,
the D.C. Circuit court's decision in Penrod called those decisions into
question and, more significantly, for the reasons noted in the next case
reported herein of developments since the Board's California Saw & Knife
Works decision, we decided to place this issue before the Board and argue
that the Local was required to provide an explanation as to how its affiliates,
other than the International, spent the money sent to them.
However, as to the other issue presented in our case, the
International provided a breakdown of its own expenditures into subcategories
and then identified chargeable portions, as the international union had done in Dameron.
We found no authority that even arguably suggested that a union must provide a
further layer of financial breakdown, i.e., must break down the financial
expenditures of the affiliates of its affiliates. We therefore decided that the
International's disclosure, breaking down affiliation fees into subcategories,
clearly satisfied the California Saw disclosure requirement.
Initial Beck Notice to Contain
Percentage of Dues Reduction
In another Beck case, we considered what
information a union was required to give initially to employees regarding their
union dues if those employees chose to either remain full members under a
union-security clause, or to become non- member fee payers who objected to
paying non-representational costs. We decided that the amount of full dues and
the percentage reduction that objecting employees would receive is information
essential to an employee's ability to decide on an informed basis whether to
object, and that requiring unions to provide this information in their initial
notices is not overly burdensome.
In California Saw & Knife Works, 320 NLRB 224,
233 (1995), the Board found that when or before a union seeks to collect dues
and fees under a union-security clause, it must inform employees of their right
to be or remain nonmembers and that nonmembers have the right to, among other
things, be given sufficient information to enable the employee to decide whether
to object to paying for nonrepresentational costs. Under current Board law, an
initial Beck notice need not provide the percentage of a union's expenditures
that is spent on non- representational matters. See Teamsters Local 166 (Dyncorp
Support Services), 327 NLRB 950, 952 (1999), enf. denied sub nom. Penrod
v. NLRB, 203 F.3d 41 (D.C. Cir. 2000). Rather, such information is required
only if an employee actually makes a Beck objection. We decided, in
agreement with the Court of Appeals decision in Penrod v. NLRB, that an
initial Beck notice should contain such information.
When California Saw issued in 1995, the concern
that caused the Board not to require disclosure of the percentage reduction in
dues in an initial Beck notice was that calculating this percentage for
inclusion in an initial notice, when there might not yet be any objectors, would
likely be an expensive and time- consuming burden upon unions. However, the
burdensome nature of such a requirement no longer appears to be a significant
concern. A review of Board and court decisions revealed that at least 26
national and international unions, collectively representing well over 10
million employees, have Beck systems in place, and that their affiliated local
unions can rely on the international's chargeable percentage under the Board's
"local presumption." Thus, the importance of this information for
making informed decisions as to whether to become a Beck objector now
appears to outweigh any burden associated with compiling the percentage
information and providing it to employees in the initial notice.
We therefore issued a complaint to put before the Board
the issue of whether a union violates its duty of fair representation by failing
to provide employees such information in its initial Beck notice.
UNION RESTRAINT OR COERCION
Union Fines for Crossing a Picket Line
In our last reported case, we decided that the Union
unlawfully fined employees for crossing a picket line under at least one of the
following three theories: 1) the Union had not informed the employees of their
right to be nonmembers under NLRB v. General Motors, 373 U.S. 734 (1963),
and their right to object to paying nonrepresentational dues under Beck;
2) the Union had misled at least one employee about her right to resign prior to
the strike; and 3) the Union fines contravened a strike amnesty agreement.
The employees had been Union members working for the
Employer as registered nurses. The Employer's bargaining agreement contained a
union-security clause requiring Union membership. Prior to a strike, one of the
employees submitted a resignation letter to the Union. The employee withdrew her
letter when the Union told her that it would seek her termination unless she
rescinded her resignation. This employee along with two other employees then
crossed the Union's picket line, without resigning from the Union.
At the conclusion of the strike, the Union's membership
approved a strike settlement agreement that contained, among other things, a
strike amnesty clause prohibiting both the Employer and the Union from taking
any action against any employee who did or did not participate in the strike. In
particular, the Union agreed that "(no) member of [the Union] (would)
retaliate against any nurse or other employee who chose, in any way, to oppose
Several months later, the Union president brought internal
union charges against each of the above employees. Upon learning of the charges,
each employee resigned from the Union and asked for her Beck rights.
However, the Union failed to provide the employees with proper Beck
financial information concerning the expenditure of Union dues. The Union
president's charges eventually resulted in fines against the employees. We first
decided that the Union violated Section 8(b)(1)(A) of the Act by disciplining
these "employee-members" for crossing the picket line because the
Union either had never informed those "members" of their General
Motors and Beck rights, or had misinformed them of these rights.
In California Saw & Knife Works, 320 NLRB 224,
231-235 (1995), the Board required unions to notify all newly hired nonmember
employees of their rights under General Motors and Beck. That
notice requirement for newly hired employees has been expanded to include all
employees who had never been given proper notice. See Rochester Mfg. Co.,
323 NLRB 260 (1997), affd. 194 F.3d 1311(6th Cir. 1999), cert. denied 529 U.S.
1066 (2000). In addition, once notice has been given, the employees have a
reasonable period of time in which to resign their union membership, and any
resignation will be treated retroactively. In our case, the Union imposed fines
against employees for working during a strike when the Union had failed to
inform them of their rights. Since the employees had a right to resign
retroactively under Rochester Mfg. Co., the fines were unlawful.
Second, under Pattern Makers v. NLRB, 473 U.S. 98
(1985), a union cannot restrict members from resigning in the face of a strike.
With respect to at least one of these employees, the Union intentionally misled
her concerning her right to resign, causing her to rescind her resignation.
Imposition of the fine against that employee was unlawful for the additional
reason that it restrained and coerced that employee's right to resign.
Finally, the Union had signed a strike amnesty agreement
promising to forego the pursuit of any employee who failed to join the strike.
The plain language of the amnesty agreement stated that no discipline was to be
imposed on any conduct connected to the strike. There was no language or
extrinsic evidence delineating any type of conduct to be excluded from the
Union's no-retaliation pledge. We therefore concluded that the fines were also
unlawful because the strike amnesty agreement prohibited the Union from
disciplining these employees for strike related activities.
Section 10(j) Authorizations
During the four month period from February 1, 2003 through
May 31, 2003, the Board authorized a total of five Section 10(j) proceedings.
Most of the cases fell within factual patterns set forth in General Counsel
Memoranda 01-03, 98-10, 89-4, 84-7, and 79-77.1
One case, involving a successor employer, was somewhat
unusual and therefore warrants discussion.
The Employer was in the solid waste removal business. It
had a small bargaining unit covered by an extant collective-bargaining agreement
with a union. It purchased the assets of another waste hauling company, which
had a larger bargaining unit whose employees were represented by a different
Union. The Employer combined the two operations into a new single facility. It
commenced operations of its new business with a unit of 22 drivers, helpers and
mechanics, a majority of whom were employees who had formerly worked for the
predecessor employer it had purchased. The Employer then refused to recognize
the predecessor employees' Union, and instead recognized the second union
representing the Employer's smaller historical bargaining unit. The Employer and
this second union applied their extant labor agreement to the new facility. The
Employer also discharged 10 employees after they commenced an alleged unfair
labor practice strike.
The Region concluded that there was reasonable cause to
believe that the Employer was a Burns successor (406 U.S. 272) to the
predecessor employer's bargaining obligation and had violated Section 8(a)(5) by
failing to recognize and bargain with the Union in the merged unit. The Region
also concluded that there was reasonable cause to believe that the Employer had
violated Section 8(a)(2) by recognizing a minority union, and by applying its
labor contract to the merged unit. Finally, the Region concluded that there was
reasonable cause to believe that the Employer's mass discharge of the strikers
We concluded, and the Board agreed, that Section 10(j)
relief was warranted in this case. The Region was directed to seek an injunction
requiring the Employer, on an interim basis, to cease recognition of the
minority union and cease application of its contract, in order to prevent the
minority union's improper entrenchment in the merged unit. We also sought an
interim bargaining order at the new facility and interim reinstatement to the
discharged strikers. This injunctive relief was warranted pending Board
adjudication to protect the parties' bona fide collective-bargaining
relationship, prevent the likely erosion of the Union's employee support and
preclude the permanent "scattering" of the discharged strikers to
The District Court granted the requested injunctive
The five cases authorized by the Board fell within the
following categories as described in General Counsel Memoranda 01-03, 98-10,
89-4, 84-7 and 79-77:
||Number of Cases In Category
|1. Interference with organizational campaign (no
|2. Interference with organizational campaign
||Case withdrawn based upon changed circumstances.
|3. Subcontracting or other change to avoid
||- - -
|4. Withdrawal of recognition from incumbent
||- - -
|5. Undermining of bargaining representative
||- - -
|6. Minority union recognition
||Case is pending.
|7. Successor refusal to recognize and bargain
||Won one case; one case is pending.
|8. Conduct during bargaining negotiations
||- - -
|9. Mass picketing and violence
||- - -
|10. Notice requirements for strikes and picketing
(8(d) and 8(g))
||- - -
|11. Refusal to permit protected activity on
||- - -
|12. Union coercion to achieve unlawful object
||- - -
|13. Interference with access to Board processes
||- - -
|14. Segregating assets
||- - -
||- - -
1 See also NLRB Section 10(j) Manual, Appendix
A, "Training Monograph No. 7."
2 A majority of the Board in this case did not
authorize seeking an interim bargaining order consistent with NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969).