OFFICE
OF THE GENERAL COUNSEL
Division
of Operations-Management
MEMORANDUM OM 04-76
July 29, 2004
TO:
All
Regional Directors, Officers-in-Charge, and
Resident
Officers
FROM:
Richard
A. Siegel, Associate General Counsel
SUBJECT:
Casehandling Instructions Regarding Cases
Involving Card Check and Neutrality Agreements
Pending
at various stages in the Agency are a number of cases implicating neutrality
agreements and card check agreements. This
memorandum outlines the major issues implicated in these cases.
If a Region has an unfair labor practice case involving any of the
issues discussed here, it should submit the case to Advice.
If it has a representation case involving these issues, it should
consult with the Executive Secretary regarding how to proceed.
As indicated in OM 04-37, Regions are reminded to include information
about cases involving these issues in the Case Activity Tracking System.
Recognition
agreements are of varying complexity. They
may be as simple as a statement of the means for establishing majority support
and the employer’s commitment to voluntary recognition if majority support
is demonstrated. Alternatively,
the agreement may cover not only recognition but also how an organizing
campaign will be conducted. These
latter agreements may, for example, limit what the employer and the union will
say about the campaign, require the employer to provide the union with
employee names and addresses or grant the union access to the facility to meet
with employees. The issues
discussed in this memorandum generally arise only in agreements entered into
before the union gains majority status.
One
issue that arises in some of these cases is whether the recognition bar
doctrine
should apply to recognition granted pursuant to a recognition agreement
entered into before the campaign begins.
In two pending RD cases, the petitioners argue that the recognition bar
should not bar processing of a decertification petition in such circumstances.
The Board granted the petitioners’ request for review of the Regional
Directors’ decisions to dismiss the petitions based on the recognition bar
and invited interested amici to file statements of position on the issue.
See, Dana
Corporation,
341 NLRB No. 150 (June 7, 2004). The
General Counsel has filed a position statement as amicus in these cases.
That position statement is posted on the SAM bulletin board.
As noted above, Regions should consult with the Executive Secretary
regarding handling of representation cases implicating this issue.
Unfair labor practice cases that implicate the recognition bar doctrine
should be submitted to Advice.
A
second class of issues involve whether terms contained in a neutrality
agreement constitute unlawful assistance to the union - a violation in itself,
as well as the basis for challenging an ensuing recognition.
In some of these cases, terms governing the organizing campaign and
election or card check procedures have been challenged.
For example, several cases allege that in the neutrality agreement the
parties committed to include specific terms in any collective bargaining
agreement that would be reached after recognition.
Other cases allege that in the neutrality agreements the parties limit
their rights regarding negotiation of a contract (such as a union no-strike
pledge or an agreement to go to interest arbitration if agreement is not
reached within a specified period of negotiation).
The Charging Parties allege that these types of agreements are unlawful
under Majestic Weaving, 147 NLRB 859 (1964).
Regions should submit to Advice any cases alleging that an employer
granted unlawful assistance to a union by its agreement to what would be
specific contract terms in the neutrality agreement.
In a
third group of cases, charges have been filed alleging that an employer and a
union agreed that the employer would require entities that it owns or does
business with to execute a neutrality agreement.
It is argued that such agreements are unlawful secondary agreements
under Section 8(e).
Regions should submit any such cases to the Division of Advice.
Although
Regions should complete their investigations before they formally submit these
cases to Advice, they are encouraged to consult with Advice during the
investigation process if they have any questions regarding the issues they
should cover or the evidence relevant to those issues.
If you have any
questions regarding this memorandum, please contact your Assistant General
Counsel or Deputy or the Division of Advice.
/s/
R.A.S.
cc: NLRBU
Release to the Public
MEMORANDUM OM 04-76
