Topic: "Bush's NLRB Legacy" | Main
Bush's NLRB Legacy: #5 of 12
January 09, 2008 by Ross Runkel at LawMemo
Card-based recognitions must allow 45 day window for rival petitions. #5 in a series of 12 significant actions by the Bush Board.
Dana Corporation, 351 NLRB No. 28 (September 29, 2007) (3-2)
When a majority (more than half) of employees have signed cards authorizing a union to represent them, an employer has the option of either (a) recognizing the union based on the cards or (b) requiring that there be an NLRB-conducted secret ballot election. In this case, the employer voluntarily recognized the union.
The issue for the NLRB was how to set up a "recognition bar" that would bar any election proceedings for a reasonable period of time to allow the union and the employer time to negotiate a contract.
In Dana Corporation, the NLRB modified the recognition bar rules for card-based recognitions, whether or not the voluntary recognition is pursuant to a neutrality or card-check agreement. Board's modified recognition bar:
"No election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed."
There are two "normal" ways for a union to become recognized: winning a secret ballot election, and being recognized voluntarily based on recognition cards. Board Members have for a long time disagreed about the extent to which each method actually furthers the statutory goal of "employee free choice."
The new rule in Dana Corp continues to allow card-based recognition, and continues to allow for a recognition bar, while also allowing a brief period of time during which there can be a challenge as to whether there really is majority support for the union.
The new rule is opposed by unions that do not want to go through a period of election campaigns, and who believe that recognition cards are trustworthy. The new rule is supported by employers who believe that recognition cards often are signed under pressure or by employees who haven't been exposed to any counter-arguments.
Bush's NLRB Legacy: #4 of 12
January 07, 2008 by Ross Runkel at LawMemo
Employee misconduct discovered through employer's unlawful conduct. #4 in a series of 12 significant actions by the Bush Board.
Anheuser-Busch, Inc., 351 NLRB No. 40 (September 29, 2007).
The Board reaffirmed its 2004 holding that the NLRA prohibits the Board from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer.
The employer uncovered evidence that employees were engaging in misconduct, including possible use of illegal drugs, in informal break areas on the roof of a building, so the employer installed a hidden surveillance camera on the roof and another camera inside an elevator motor room. The use of hidden surveillance cameras was a change in the employer's operations, and the employer did not notify the Union of its decision to install the cameras.
The cameras observed 16 employees engaging in misconduct. After discontinuing the surveillance, the employer notified the Union that it had been using the cameras. The Union protested the failure to provide notice and an opportunity to bargain over the installation of the cameras.
The employer interviewed each of the 16 employees. Before each interview, the Union advised the employee that the Respondent had videotaped the employee’s conduct; each employee then admitted engaging in the observed misconduct.
The employer discharged 5 of the 16 employees. Each of the discharged employees had violated the Respondent’s rules by using illegal drugs (marijuana) at work. The employer suspended the remaining 11 employees, and issued “last chance” agreements to 7 of them. All of the suspended employees had violated Respondent’s rules by entering a restricted area and by being away from an assigned work location for an extended time period. Some of the suspended employees had also violated the Respondent’s rules by sleeping on duty or by urinating on the roof.
The Board found that the employer violated Section 8(a)(5) by failing to give the Union notice and an opportunity to bargain before installing the hidden surveillance cameras.
The Board rejected the argument that the employees, who were disciplined based solely on the employer's unquestionably unlawful use of hidden surveillance cameras, are entitled to make-whole relief (reinstatement and back pay).
The NLRB majority relied primarily on Section 10(c), which provides:
"No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause."
My view: This decision carries forward earlier decisions in which the NLRB found liability and granted a remedy for unlawful employer conduct, but refused to overturn discipline when the evidence against the employee was derived from that unlawful conduct. The decision is, however, an extension of the earlier cases.
Bush's NLRB Legacy: #3 of 12
January 04, 2008 by Ross Runkel at LawMemo
At-will strike replacements are "permanent" replacements.
#3 in a series of 12 significant actions by the Bush Board.
Jones Plastic & Engineering Co., 351 NLRB No. 11 (September 27, 2007) (3-2).
It has long been the rule that when there is an economic strike (as opposed to an "unfair labor practice strike") the striking employees have a right to get their jobs back at the end of the strike unless the employer has hired "permanent replacements."
In Jones Plastic there was an economic strike, and the employer hired replacements who signed the following form:
I [name of replacement] hereby accept employment with Jones Plastic & Engineering Company, LLC, Camden division (hereafter “Jones Plastic”) as a permanent replacement for [name of striker] who is presently on strike against Jones Plastic. I understand that my employment with Jones Plastic may be terminated by myself or by Jones Plastic at any time, with or without cause. I further understand that my employment may be terminated as a result of a strike settlement agreement reached between Jones Plastic and the U.S.W.A. Local Union 224 or by order of the National Labor Relations Board.
The NLRB held that these replacements were "permanent" replacements, meaning that they displaced the striking employees.
The Board announced that at-will employment status does not detract from an employer's otherwise valid showing that it has permanently replaced striking employees. The Board overruled Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.
The Board did not change the basic rule that an economic striker loses the right to reinstatement if he or she is permanently replaced.
The issue was whether a replacement who is hired "at-will" (meaning that the replacement was not guaranteed continued employment and could be fired for any reason) should be categorized as "permanent." The majority of the Board concluded that an at-will replacement in fact displaces a striking employee.
It appears that the majority is drawing a line between "permanent" as opposed to "temporary." Thus, if replacements are told that they have a job only so long as the strike continues, they are not permanent and the strikers will get their jobs back.
Bush's NLRB Legacy: #2 of 12
January 03, 2008 by Ross Runkel at LawMemo
Employee use of employer's email: no-solicitation rules and a definition of "discrimination"
#2 in a series of 12 significant actions by the Bush Board.
The Guard Publishing Company, d/b/a The Register Guard, 351 NLRB No. 70 (December 16, 2007) (3-2).
The employer had a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations." Employees used email regularly for work-related matters. Employees also used email to send and receive personal messages such as baby announcements, party invitations, and the occasional offer of sports tickets or request for services such as dog walking. However, there is no evidence that the employees used email to solicit support for or participation in any outside cause or organization other than the United Way, for which the employer conducted a periodic charitable campaign.
An employer does not violate the National Labor Relations Act (NLRA) by maintaining a policy that prohibited employees from using the employer's email system for any "non-job-related solicitations."
This is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
The employer did not unlawfully "discriminate" within the meaning of the National Labor Relations Act. The majority adopted the reasoning of the United States Court of Appeals for the Seventh Circuit, noting that in two cases involving the use of employer bulletin boards, the court had distinguished between personal nonwork-related postings such as for-sale notices and wedding announcements, on the one hand, and "group" or "organizational" postings such as union materials on the other. See Fleming Companies v. NLRB, 349 F.3d 968, 975 (7th Cir. 2003), denying enf. to 336 NLRB 192 (2001); and Guardian Industries Corp. v. NLRB, 49 F.3d 317, 319-320 (7th Cir. 1995), denying enf. to 313 NLRB 1275 (1994). The Board majority found that the court's analysis, "rather than existing Board precedent, better reflects the principle that discrimination means the unequal treatment of equals." The majority overruled the Board's decisions in Fleming, Guardian, and other similar cases to the extent they were inconsistent with its decision here.
The first holding (allowing a no-use rule) is consistent with previous holdings by the Board, saying that employers have a right to limit the use of employer-owned things such as bulletin boards, copy machines, telephones, and so on. An employer can limit the use of such things to business-related activities. For the majority, email is no more than the modern version of bulletin boards and copy machines.
The second holding (the definition of "discrimination") is a major new policy decision. The majority of the Board adopted a definition that has never been adopted by the Board in the past, and has been adopted by only one of the federal Circuit Courts. This will allow employers much greater flexibility to ban the use of email, (and phone, copy machine, bulletin board) for organizing purposes while allowing employees to use it for other non-business purposes.
Bush's NLRB Legacy: #1 of 12
January 02, 2008 by Ross Runkel at LawMemo
Weingarten rights: non-union employees do not have them.
#1 in a series of 12 significant actions by the Bush Board.
IBM Corp., 341 NLRB No. 148 (06/09/2004) (3-2)
A " Weingarten right" is the right of an employee to have a union representative present when called in by the employer for an investigative interview, where the employer is investigating alleged wrongdoing by the employee.
This right was recognized by the Board and given approval by the US Supreme Court in the 1970's. Since then the Board has gone back and forth on the question of whether to extend similar rights to employees in the non-union sector.
In IBM Corp. the Board returned to the rule that Weingarten rights are available only for unionized employees.
As a matter of legal theory, the Weingarten principle has always rested on a thin reed. That thin reed originally was tied to the fact that the employee's request for the presence of a representative could be traced back to the original union organizational effort, and perhaps to the bargaining that resulted in a collective bargaining agreement. Therefore, this decision returns the theory to its roots, flimsy as they might be. As a matter of practicality, of course, the nonsense is that unionized employees who can (and often do) by contract require the presence of a representative do not need a statutory right, and the non-union employees are the ones with the need. Law, however, is often driven by theory rather than practicality.
This case does not mean that the statute as a whole does not apply to non-union employees. Non-union employees continue to have all their other statutory rights.
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