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NLRB Reversals During the Bush Administration

By Ross Runkel   Bio   email
Editor, Employment Law Memo

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[Revised 01/19/2006.  To be continually revised as the NLRB takes action.]

This article (1) highlights recent National Labor Relations Board decisions that have reversed earlier Board precedent and (2) suggests additional reversals of policy that are likely to come from a new  Board appointed by President George W. Bush.

As of January 17, 2006 the Board has been at full strength with three Republicans and two Democrats, all appointed by President Bush: Chairman Robert J. Battista (Rep) for a term expiring in December 2007; Peter Schaumber (Rep) serving in a recess appointment; Peter N. Kirsanow (Rep) serving in a recess appointment; Wilma Liebman (Dem) August 2006; Dennis P. Walsh (Dem) serving in a recess appointment.

Although more than 90 percent of all NLRB decisions are unanimous, a small number of cases tend to be decided along political party lines, and these cases often involve important legal policies that have a high impact on employers, unions, and employees.

The NLRB has a great deal of discretion to decide on detailed interpretations of the National Labor Relations Act.  Generally, when the Act does not give a clear answer to a legal question, the courts are required to defer to the NLRB's interpretation, assuming it is a reasonable one.  Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  As a result of this "Chevron doctrine," shifting majorities on the NLRB are able to change the Board's interpretation of the law, with court approval in most cases.

NLRB precedents overruled.

Epilepsy Foundation overruled; Non-unionized workers not entitled to representation at disciplinary interview.

IBM Corp., 341 NLRB No. 148 (06/09/2004), by a 3-2 vote, restored the principle that employees who work in a nonunionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline. The Board overruled Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000). Under NLRB v J. Weingarten, 420 U.S. 251 (1975), employees represented by a union have the right to have a representative accompany them to a disciplinary interview.

New York University overruled; Graduate student assistants are not statutory employees.

Brown University (07/13/2004), in a 3-2 decision, found that graduate student assistants are not employees within the meaning of Section 2(3) of the National Labor Relations Act.  The Board found that these persons are students and are not statutory employees. The decision overrules the Board's decision four years ago in New York University, 332 NLRB 1205 (2000), which found that the graduate student assistants there were employees within the meaning of Section 2(3) of the Act.  NYU had overruled over 25 years of precedent under which graduate student assistants had not been regarded as statutory employees. The Board majority expressed no opinion regarding the Board's decision in Boston Medical Center, 330 NLRB 152 (1999), relied on heavily in the NYU decision, in which a Board majority found that interns, residents, and house staff at teaching hospitals were employees within the meaning of Section 2(3) of the Act.

M.B. Sturgis overruled; temporary employees are excluded from unit of permanent employees unless all parties consent.

H.S. Care L.L.C., d/b/a Oakwood Care Center and N&W Agency, Inc. (11/19/2004) in a 3-2 decision, returned to longstanding Board precedent and held that employees obtained from a labor supplier cannot be included in a unit of permanent employees of the employer to which they are assigned unless all parties consent to the bargaining arrangement. The majority of Chairman Battista and Members Schaumber and Meisburg found that such units, combining jointly-employed supplied employees and permanent employees solely employed by the user employer, are multiemployer units.  Under Section 9(b) of the Act, consent is required for the establishment of such multiemployer units.  Members Liebman and Walsh dissented. The decision overrules the Board's decision in M.B. Sturgis, 331 NLRB 1298 (2000), which held that bargaining units that combine employees who are solely employed by a user employer and employees who are jointly employed by the user employer and a supplier employer are permissible under the Act.  Sturgis had overruled established precedent finding such units to be impermissible, absent consent.  See Lee Hospital, 300 NLRB 947 (1990).

Springs Industries overruled; Threats of plant closure will not be presumed disseminated.

Crown Bolt, Inc., 343 NLRB No. 86 (11/29/2004) in a 3-2 decision held that an employer’s threat to close its facility in the event employees vote for union representation will not be presumed disseminated throughout the bargaining unit.  The Board’s holding, however, is prospective only.  In all pending cases involving threats of plant closure, the Board will continue to rebuttably presume that such threats were widely disseminated. The decision overrules the Board’s decision four years ago in Springs Industries, Inc., 332 NLRB 40 (2000), which held that plant-closure threats are presumed disseminated throughout the plant absent evidence to the contrary.  Springs Industries, in turn, overruled Kokomo Tube Co., 280 NLRB 357 (1986), where the Board declined to presume dissemination of a threat of plant closure made to a single employee.  The Crown Bolt majority concluded that Kokomo Tube “represents the better evidentiary rule in requiring the party that seeks to rely on dissemination throughout the plant to show it.”

St. Elizabeth Manor, Inc. is overruled.

MV Transportation, 337 NLRB No. 129 (07/17/2002), re-established the doctrine that an incumbent union in a successorship situation is entitled to - and only to - a rebuttable presumption of continuing majority status, which will not serve as a bar to an otherwise valid decertification, rival union, or employer petition, or other valid challenge to the union's majority status.  This overruled St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), which had held that when an employer acquires a unionized employer's workplace and is required to recognize the union, the employees are prohibited from seeking to decertify the union until the union has had "a reasonable period of time for bargaining" with the new employer.

Other NLRB precedents likely to be overruled.

Possible new standard in "salting" cases.

FES, 331 NLRB 9 (2000), set the standards for analyzing "salting" cases - where a union organizer applies for employment with the objective of soliciting employees on behalf of a union.  In Exterior Systems, Inc., 338 NLRB No. 82 (11/22/2002), two former Board Members signaled a change in the FES standards so that the General Counsel would have to demonstrate that an applicant actually intended to gain employment or had a genuine interest in gaining employment.

Whether medical "house staff" are "employees."

In Cedars-Sinai Medical Center, 223 NLRB 251 (1976), decided shortly after the enactment of the Health Care Amendments to the National Labor Relations Act, a Board majority concluded that medical interns, residents and fellows were not statutory employees.  In St. Clare's Hospital & Health Center, 229 NLRB 1000 (1977), the Board attempted to clarify its Cedars-Sinai decision by emphasizing that the decision was one involving individuals who were primarily students rather than employees.  In Boston Medical Center, 330 NLRB No. 30 (1999), the NLRB found that medical interns, residents and fellows are statutory employees.  The Board said, in effect, that their status as students does not mean they cannot also be employees.  The Board's vote was 3 to 2 along party lines.

Whether dispatchers are supervisors.

Mississippi Power & Light Co., 328 NLRB No. 146 (1999), overruled Big Rivers Electric Corp., 266 NLRB 380 (1983),  and concluded that a public utility's dispatchers are not supervisors.  The majority found that "the dispatchers' purported authority to assign and direct field employees does not involve the exercise of independent judgment within the meaning of Section 2(11)."

Decertifying and derecognizing an incumbent union.

[See discussion of MV Transportation, above.]

Under the long-standing doctrine of Celanese Corp., 95 NLRB 664 (1951), an employer could withdraw recognition from an incumbent union if the employer had a good-faith uncertainty as to the union’s majority status.  After Levitz, 333 NLRB No. 105 (2001), the Board now requires an employer who withdraws recognition from an incumbent union to prove that the union had, in fact, lost majority status at the time of the withdrawal.  The Board's vote was 3 to 1 along party lines.

Chelsea Industries, Inc., 331 NLRB No. 184 (2000), held that if the evidence of employee dissatisfaction with a union was gathered during the one-year period during which a union's majority status is immune from attack, then that evidence cannot be used to support withdrawal of recognition after the one-year period.

Use of mail ballots in NLRB elections.

San Diego Gas & Electric, 325 NLRB No. 218 (1998), approved the use of mail balloting where the 20 unit employees worked at eight different locations spread across more than 80 miles. The majority abandoned the standard set forth in the Board's Casehandling Manual that "the use of mail balloting, at least in situations where any party is not agreeable to the use of mail ballots, should be limited to those circumstances that clearly indicate the infeasibility of a manual election." Noting that the Manual has not been revised since 1989 and does not reflect Board decisions issued since that date, the majority stated that "this has resulted in some confusion as to when it is appropriate to use mail ballots." Members Fox and Liebman set forth the following guidelines clarifying the circumstances under which it is within the Regional Director's discretion to direct the use of mail ballots: (1) where eligible voters are "scattered" because of their job duties over a wide geographic area; (2) where eligible voters are "scattered" because of their work schedules; and (3) where there is a strike, a lockout, or picketing in progress.

Photographing and videotaping employees.

Randell Warehouse of Arizona, Inc., 328 NLRB No. 153 (1999), held that it is not per se unlawful for a union to photograph union representatives distributing union literature outside the employer's facility, thus overruling Pepsi-Cola Bottling Co., 289 NLRB 736 (1988).  The Board indicated that it would continue to follow F.W. Woolworth Co., 310 NLRB 1197 (1993), which makes it an unfair labor practice for an employer to photograph or videotape employees engaged in protected activities.

Blocking charges.

The Board's policy is to hold in abeyance the processing of any representation case where an unfair labor practice charge is filed alleging unlawful conduct which, if proven, would have a tendency to interfere with the free choice of employees in an election. See United States Coal Co., 3 NLRB 398 (1937); Big Three Industries, 201 NLRB 197 (1993); NLRB Casehandling Manual (CHM), Section 11731.5.  Two former Members signaled their desire to reconsider the "blocking charge" policy in circumstances where the unfair labor practice charge alleges conduct that could properly be alleged in a postelection objection.  Bally's Park Place, Inc., d/b/a Bally's Atlantic City, 338 NLRB No. 43 (10/21/2002).

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