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 June 2001 through August 2002. 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 202-273-1991.)
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REPORT OF THE GENERAL COUNSEL
This report covers selected cases of interest that were decided during the period from June 2001 through August 2002. 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.
EMPLOYER INTERFERENCE WITH PROTECTED ACTIVITIES
Discharge of Union Steward
In this case, we decided that the Employer violated Section 8(a)(1) and (3) of the Act by discharging a Union steward shortly after the Employer lawfully withdrew recognition from the Union.
The shop steward was an outspoken union advocate and a member of the Union's negotiating committee. Ten days after the Employer learned it no longer had a bargaining obligation with the Union, the Employer fired the steward.
The Employer initially gave no reason for the steward's discharge, but later claimed that for many years it had problems with the steward's work performance, absenteeism, and tardiness, but had tolerated that performance because the steward had several children. The Employer also admitted that it discharged the steward because now the Union no longer represented the employees and the expired collective-bargaining limited his ability to fire the steward.
The evidence demonstrated that the steward had received only one warning in the year preceding his discharge, and that the Employer's disciplinary policy required three warnings within a 12-month period before dismissal. We also learned that the parties' contract provided that the steward should be the last person laid off in case of insufficient work and did not limit the Employer's ability to discharge a steward for cause.
We decided that the timing of the steward's discharge as well as the Employer's admissions provided a sufficient basis to allege that the steward was discharged because of his union activities.
Although the Employer relied on the steward's poor work performance to support the discharge, the steward's last warning was issued nine months prior to his discharge. In addition, the Employer did not produce documentary evidence showing that its treatment of the steward was consistent with its treatment of other similarly situated employees. Finally, the Employer's admission that it decided to discharge the steward because it was no longer bound by the Union contract supported our conclusion that the Employer was motivated by anti-union considerations.
Discharge of Supervisor
We decided that the Employer unlawfully discharged a supervisor after ordering her to tell her fiancÚ, a Union business agent, that the supervisor's job was in jeopardy unless the fiancÚ stopped organizing the Employer's employees.
A Union business agent began organizing the employees at the Employer's store. The business agent's fiancÚ was a supervisor at that store. A corporate official asked the supervisor why she hadn't told him about her relationship to the Union business agent. The supervisor said that the Employer had told her not to discuss the Union with anyone, and that the business agent had told her that the Union did not affect her. The corporate official replied that he was upset with the supervisor.
The following day, a corporate official told the supervisor to talk the business agent out of organizing, and that her job was "on the line." The supervisor replied that she wanted no part of the matter. When she later told her fiancÚ business agent what had happened, he became upset and refused to discuss the matter.
The next afternoon, two corporate officials asked the supervisor if she had spoken with her fiancÚ business agent. The supervisor stated that the business agent was upset that the supervisor's job had been threatened. That evening, the Employer discharged the supervisor allegedly because of her behavior.
We decided that the Employer violated Section 8(a)(1) by discharging the supervisor because the discharge coerced the Union business agent who was organizing the Employer's employees, interfering with their Section 7 rights. By its terms, the threat that the supervisor's job was "on the line" if she didn't talk her fiancÚ business agent out of organizing showed that her discharge was "motivated by a desire to thwart organizational activity among employees." See Parker-Robb Chevrolet, 262 NLRB 402, 404, rev. den 711 F.2d 383 (D.C. Cir 1983).
The retaliatory discharge of a supervisor in an effort to coerce a related employee is unlawful. See Advertiser's Mfg. Co., 280 NLRB 1185 (1986), enfd. 823 F.2d 1086 (7th Cir. 1987); Kenrich Petrochemicals, 294 NLRB 519, 531-33 (1989), enfd. in rel. part 893 F.2d 1468 (3d Cir. 1990), enfd. on rehearing 907 F.2d 400 (3d Cir. 1990), cert. denied 498 U.S. 981 (1990). The Board has not limited this violation to formal marital or blood relationships. See Marshall Durbin Poultry, 310 NLRB 68, 99 (1993), enfd. in rel. part 39 F.3d 1312 (5th Cir. 1994); Yukon Manufacturing, 310 NLRB 324, 336 (1993).
Discharge For Argumentative Protest
We decided that the Employer violated the Act when it discharged an employee because he made a boisterous and argumentative protest.
The Employer held a luncheon meeting for its employees in part aimed at hearing employee concerns about working conditions. The Employer's general manager asked a group of employees if they had any questions. The discriminatee indicated that he wanted to ask some questions on behalf of himself and his coworkers. He then raised issues about employee evaluations, employee pay raises, the incentive/bonus plan, and the Employer's 401(k) plan.
During the discussion, the discriminatee challenged some of the manager's responses. He referred to one of the manager's explanations as "baloney" and spoke in a loud voice. The Employer later stated that the discriminatee had become "extremely agitated and spoke in a heated, disrespectful, challenging, and insubordinate tone."
The general manager sent the discriminatee a memorandum claiming that the discriminatee had been very loud while voicing his discontent at the earlier meeting, and that his challenging, loud, animated, and insubordinate tone had embarrassed the general manager. The memorandum requested that the discriminatee acknowledge his receipt and understanding of the memorandum by signing it. The discriminatee refused to sign the memorandum.
The Employer's owner telephoned the discriminatee at home. After a heated discussion over what had happened at the luncheon meeting, the Employer discharged the discriminatee. The Employer asserted that it did not discharge the discriminatee because of his conduct at the luncheon meeting. The Employer claimed that the discriminatee would not have been terminated if he had signed the memorandum and had not become insubordinate over the telephone.
We first decided that discriminatee had engaged in protected, concerted activity during the luncheon. The Board has held that "employee questions and comments concerning working conditions raised at a group meeting called by an employer clearly come within the definition of concerted activity under Board precedent." Neff-Perkins Co., 315 NLRB 1229, fn. 1 (1994). Moreover, the discriminatee's alleged misconduct during the luncheon did not exceed the bounds of permissible protected activity. The Board has long recognized that the protections afforded by Section 7 would be meaningless if the Board were not to take into account the fact that disputes over wages, hours, and working conditions are likely to engender ill feelings and strong responses. See Consumers Power Company, 282 NLRB 130 (1986). For example, an employee who engaged in loud, argumentative and confrontational conduct during a management meeting with employees did not exceed the bounds of permissible conduct. Caval Tool, 331 NLRB No. 101 (2000), enfd. 262 F 3d 184 (2nd Cir. 2001). We therefore decided that the general manager's memorandum to the discriminatee was an unlawful warning because it was directed at his protected, concerted conduct at the luncheon. We recognized that an employer can lawfully discharge an employee for refusing to sign a valid disciplinary warning. However, the Board has held that an employer violates Section 8(a)(1) when, as the Employer did here, it discharges an employee for refusing to sign an unlawful warning. Joe's Plastics, 287 NLRB 210 (1987).
In Kolkka Tables, 335 NLRB No. 69 (2001), the Board held that an employer violated Section 8(a)(1) when it suspended an employee for repeatedly refusing to comply with a supervisor's order to remove union stickers from his personal toolbox. Although the employee had "hotly" and "defiant[ly]" refused the supervisor's order, the Board found that the order to remove the stickers itself was unlawful because it interfered with the employee's Section 7 rights. The Board also found that nothing in the manner of the employee's refusal to comply with the unlawful order constituted insubordination.
We decided that the memorandum issued to the discriminatee was unlawful, and the discriminatee's subsequent conduct was protected, in accord with Kolkka Tables. We therefore found that the Employer could not lawfully discharge the discriminatee for refusing to sign the unlawful warning memorandum.
Union Waiver of Concerted Activity
We decided that a union may lawfully waive employee rights to participate in concerted activity regarding voluntary overtime, and that the specific contract language in this case did waive those rights.
During negotiations for a national agreement, the Employer sought flexibility in scheduling overtime and the Union sought limits on mandatory overtime. In exchange for limits on overtime, the Union agreed to an overtime-scheduling plan which prohibited employees from engaging in any concerted activity when refusing voluntary overtime. Specifically, the parties agreed that the right to decline voluntary overtime:
The Charging Party employee was in the break room with other employees when a supervisor entered the room to offer the group voluntary overtime. When the employee declined overtime, the supervisor asked for his reason. The employee explained that he did not "believe in working overtime while people are being laid off and doubled up on jobs." The Employer later discharged the employee allegedly because of this statement.
We first decided that a union could lawfully agree to limit concerted activity regarding voluntary overtime. Such an agreement would be a waiver of employee rights analogous to a union's decision to waive the employee right to strike.
In NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974), the Supreme Court stated that a "union may bargain away its members' economic rights, but it may not surrender rights that impair the employees' choice of their bargaining representative." The Union's waiver here did not infringe individual employee rights to engage in activity affecting choice of a bargaining representative, which would be impermissible under Magnavox.
We then decided that the particular contract language here clearly and unmistakably waived the employee right to engage in concerted activity about voluntary overtime. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 705-07 and n. 11 (1983); Charles S. Wilson Memorial Hospital, 331 NLRB No. 154, slip op. at 2 (2000)("either the contract language relied on must be specific or the employer must show that the issue was fully discussed and consciously explored and that the Union consciously yielded or clearly and unmistakably waived its interest in the matter").
EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH
Bargaining Over New Benefits
We decided that the Employer unlawfully failed to bargain with the Union over an extension of COBRA health insurance coverage mandated by a change in state law.
The parties' bargaining agreement provided for health insurance. Our case arose as a result of new state regulations which provided that state residents, upon meeting certain conditions, would become eligible for extended medical and hospitalization benefits. The new regulations also provided that the maximum premium for this extended coverage could not exceed 213 percent of the group rate. The Employer notified the Union that the Employer was amending its health insurance plans to include additional continuation of COBRA and other coverage mandated by the state regulations.
The Employer rejected a Union request for time to study the Employer's changed health insurance plan. The Employer also advised the Union that it had implemented the maximum amount it could lawfully charge for this coverage, i.e., 213 percent of the current group rate.
The Employer argued that it need not bargain over the extended benefits because any individuals eventually receiving them would no longer be employees and no longer be represented by the Union at the time. We decided that the Employer violated the Act because it failed to bargain over these benefits which were put in place for current bargaining unit employees to receive after they became separated from employment.
In Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 180 (1971), the Supreme Court held that the employer had no bargaining obligation with respect to former employees who had since retired. However, the Court also held that the Employer did have a bargaining obligation over present employees who may in the future retire and become entitled to benefits. Since the individuals who would be eligible for the COBRA and extended benefits coverage in our case were not retirees but rather were current employees who in the future might lose their jobs or become underemployed, the above principles applied with respect to the contractually provided health insurance plan here.
The Board has held that an employer is required to bargain over the implementation and effects of state or federally mandated changes to the extent that the mandated changes grant discretion to the employer. Watsonville Register-Pajaronian, 327 NLRB 957, 958-959 (1999), and cases cited. The Employer here exercised discretion provided to it by the state regulations to set the premium for this extended group insurance coverage to the maximum amount allowable. The Employer did so unilaterally, without giving the Union the opportunity to bargain.
We therefore decided that the Employer violated Section 8(a)(5) when it refused to bargain with the Union over modifications to the health insurance benefit.
Providing Information Under A Neutrality Agreement
We decided that the Employer did not violate Section 8(a)(5) of the Act when it refused to provide the Union with requested information under the terms of the parties' neutrality agreement.
The Employer and the Union entered into a neutrality agreement which set forth procedures for establishing bargaining units among the "non-management employees" of the Employer's companies. The neutrality agreement provided that (1) the Employer would furnish the Union with lists of employees in the bargaining units; and (2) if the parties could not agree on the scope of an appropriate bargaining unit, the scope of the unit would be submitted to binding arbitration.
The parties reached impasse over the scope of appropriate bargaining units and agreed to submit the unit issues to arbitration. During arbitration, the Union requested, pursuant to the neutrality agreement, that the Employer supply it with the names and addresses of non-management employees working at some of its operations. The Employer refused claiming that it was under no obligation to provide information until the arbitration procedure established the bargaining units. The Union filed this charge alleging that the Employer unlawfully refused to provide the requested names and addresses.
We decided to dismiss the charge because the Employer's refusal to supply the information was based on a plausible interpretation of the parties' agreement.
Under NCR Corporation, 271 NLRB 1212, 1213 (1984), an employer's good faith belief that its conduct is justified by the parties' contractual agreement is a defense to a Section 8(a)(5) allegation where the issue is "solely" one of contract construction, and the parties assert "two equally plausible interpretations" of their contract.
In applying NCR, we first noted that the dispute in the case before us was solely one of contract construction. We then decided that the Employer's contractual interpretation of when it was required to provide employee names and addresses was just as plausible as the Union's interpretation. According to the Employer, the neutrality agreement contemplated that the parties would first establish appropriate bargaining units before the Employer would become obligated to furnish employee names and addresses. The Union noted that the clause providing for employee names and addresses preceded the clause establishing bargaining units. The Union thus argued that the clauses should be read serially and the Employer should be obligated to provide the information first. However, the Union did not provide any bargaining history or other evidence as a basis for its interpretation. In the absence of such evidence, we decided that the Employer's interpretation of the neutrality agreement was as plausible as the Union's interpretation.
Successor Initial Terms of Employment
We decided that it was not appropriate to impose a remedy under Advanced Stretchforming International, Inc., 323 NLRB 529, 530 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir. 2000), cert. den. 70 L.W. 3037 (2001), against a successor employer who had made unlawful statements to prospective employees and unilaterally set initial terms of employment, but who then later timely recognized and bargained with the Union.
The Employer employed security officers at federal government facilities. The Employer took over a government contract where employees had been represented by the Union and covered by a collective-bargaining agreement. The Employer held training sessions with small groups of applicants for employment, including unit employees who wished to continue their employment. Throughout the training sessions, the Employer repeatedly stated that it would not be offering the same employment terms contained in the predecessor's collective-bargaining agreement.
At one training session, the Employer's president stated that employees did not need a union and that he was going to give the employees everything the Union sought. At another session, the Employer was asked whether there would still be a union with the Employer. The Employer responded that union representation would not be necessary because the Employer could provide what the employees needed, and could provide that better than the Union. Those statements were unlawful promises of benefits to dissuade employees from supporting the Union.
The Union requested bargaining before the Employer had completed its hiring process. Although the Employer replied that the Union's request was "premature," the Employer also stated that it would abide by any bargaining obligation that might eventually be created.
The Employer soon hired all its employees, a majority of which were predecessor employees. The Employer set terms and conditions of employment different from those which had been in existence with the predecessor. However, the Employer also recognized and bargained with the Union over an initial collective-bargaining agreement.
Under Advanced Stretchforming, successor employers violate Section 8(a)(5) of the Act when they unilaterally set initial terms of employment in circumstances where they had made unlawful statements to prospective employees during the hiring process, that they would not recognize and bargain with the union, and where they in fact subsequently refused to recognize the union. The basis for finding a violation and preventing the successor from setting its own initial employment conditions in those cases is the Board's determination that imposing an obligation to retain the predecessors' conditions is a necessary remedy for the successor employers' having blocked the successorship process and chilled employee support of the union.
We decided that finding a violation and imposing an Advanced Stretchforming remedy was not warranted in our case notwithstanding the Employer's unlawful statements. The Employer did not make the kind of unequivocal statements, expressing a clear intention to refuse to recognize the Union regardless of any legal obligation, that were made by the employers in the Board's Advanced Stretchforming cases. To the contrary, the Employer clearly stated to the Union that it would abide by any bargaining obligations it might have at the completion of its hiring process.
We further decided that even if the Employer's statements here were the equivalent of telling employees there would be no union, an Advanced Stretchforming remedy was not warranted because the Employer did recognize the Union after hiring a majority of employees. The Employer's statements did not "block the process"; a successor bargaining obligation was incurred. Finally, there was no basis to presume that the effects of the Employer's two unlawful promises of benefit were sufficiently pervasive or chilling to have affected the bargaining process after the Employer hired the unit employees and recognized the Union.
Employer Polling and
We decided that the Employer violated Section 8(a)(5) by polling a unit of employees twice over whether they still desired the Union, and then withdrawing recognition based on the results of the second poll.
The Union represented a unit of 32 unit employees. In May-June 2001, an employee circulated a petition aimed at ending the Union's representative status. The employee told management that "he only needed a couple more signatures to have a majority", and would try to get more. The employee ultimately obtained only 12-13 employee signatures, gave up and destroyed the petition.
By December 2001, out of 32 unit employees, ten had directly told the Employer that they wished to end the Union's representative status. One or more of those ten also reported to the Employer that another four named employees desired to terminate the Union's status. Thus, 14 of 32 employees, or roughly 44% of the unit, had expressed either direct or indirect opposition to the Union. The Employer conducted its first employee poll on December 11. The result was 14 to 10 against the Union with eight employees not voting. The Employer claimed that the poll was "inconclusive" and conducted a second poll one week later. All 32 eligible employees voted in the second poll. The result was 22 to 10 against continued Union representation. The Employer then withdrew recognition.
In Allentown Mack Sales and Service v. NLRB, 522 U.S. 359 (1998), the Court announced that an employer may withdraw recognition from an incumbent union based upon a "good faith uncertainty" of its majority status. An employer also may lawfully poll its employees based on a "good faith uncertainty." Texas Petrochemicals Corp., 296 NLRB 1057 (1989). We first decided that the Employer's reliance only on evidence from a numerical minority of employees, without additional reliable evidence of other employees' disaffection from the Union, made its initial poll of unit employees unlawful as not based on a "good faith uncertainty."
In Levitz, 333 NLRB No. 105 (2001), the Board did not answer the question of whether direct evidence from a numerical minority of employees, standing alone in the absence of other reliable evidence of employee disaffection, could establish a good-faith, reasonable uncertainty. While the Supreme Court in Allentown Mack, 522 U.S. at 368-69, implied in dicta that direct evidence from a numerical minority of the bargaining unit could satisfy the good-faith uncertainty standard, that view is inconsistent with, and does not rebut the presumption that, a union retains the support of the employees it represents. See generally Auciello Iron Works v. NLRB, 517 U.S. 781, 785-86 (1996); Transpersonnel, Inc., 336 NLRB No. 39, slip op. at 2 (2001).
We found no case where the Board had found that the expressions of disaffection from a numerical minority of employees, unaccompanied by statements regarding other employees' views or by other circumstances, constitute a good faith uncertainty. We therefore concluded that the Employer did not have a good faith uncertainty adequate to justify its taking of the first poll. We noted that the Employer also knew after June that the petition circulator had failed to obtain signatures from a majority on a petition indicating that they wished to become unrepresented.
We also concluded that even if the first assertedly "inconclusive" poll had been lawful, the second poll and therefore the subsequent withdrawal of recognition were both unlawful. The Employer did not claim that anything had prevented the remaining 8 unit employees from voting in the first poll, nor claim that there were irregularities in the poll that needed to be corrected. After the first poll, the number of employees known to oppose the Union was still only a minority of 14, the same number of employees that the Employer used to justify that poll. This minority result also confirmed the Employer's pre-poll knowledge that the employee had failed to obtain a majority-based petition to oust the Union. Thus the Employer had no basis for conducting the second poll. Since both polls, or at the very least the second poll, were unlawful, the subsequent withdrawal of recognition based on the results of the second unlawful poll also was unlawful.
Withdrawing Recognition Based Upon
We decided that the Employer could not lawfully withdraw recognition from the Union based upon a decertification petition signed by a majority of employees.
An employee filed a decertification petition with the Regional Office of the Board. The Region asked the employee to submit her showing of interest to support the petition. The employee sent the Region a letter referring to "the original showing of interest for decertification" containing 36 signatures. This showing of interest had been presented in support of a petition filed two to three months before the filing of the instant petition. The Region had blocked the processing of the first petition because of several pending unfair labor practice allegations.
Several months later, the Employer received a second copy of the original employee petition, which now contained an additional two signatures. An attached cover letter to the Employer referred to the list of names "showing their interest for decertification" of the Union, and looking forward to the Board holding "an election, then all parties involved will know what the majority [of employees] want." The cover letter also stated that additional employees had supported the petition, but had not signed for fear of repercussions. The petition contained signatures from a majority of the unit represented by the Union. The Employer verified the petition signatures and then withdrew recognition from the Union.
We decided that, under Levitz, 333 NLRB No. 105 (2001), the decertification petition in this case was not proof that the Union actually lost majority support, even though it was signed by a majority of employees in the unit. The employee petition stated that it was for a "showing of interest for decertification." The petition therefore only indicated the employees' desire to obtain an election; it did not unequivocally indicate the employees' desire to have the Union decertified. We relied on the fact that the unit employees were familiar with the Board terminology and understood that signing the petition only meant signing up for an election. We also noted that the cover letter to the Employer indicated that an election was the method under which "all parties involved will know what the majority of [employees] want."
Changing Health Insurance Plans
We decided that an Employer did not violate Section 8(a)(1) and (5) of the Act by making a unilateral change in employee health insurance plans after giving the Union notice and an opportunity to bargain.
The Employer and the Union were engaged in initial contract negotiations when the insurance carrier sent the Employer its annual insurance renewal notice stating that health insurance premiums would increase by 47 percent. In the past, the Employer had passed along 25 percent of any premium increases to employees. However, in 2001 the Employer had paid the entire amount of a 27 percent premium increase.
The Employer notified the Union of the 47 percent premium increase. The Employer also stated that it was looking at competing plans and offered to bargain with the Union over any changes. The Union responded that it would not bargain over insurance separately from a total economic package. The Employer therefore changed insurance plans as of the renewal date.
Generally, when "parties are engaged in negotiations for a collective-bargaining agreement, an employer's obligation to refrain from unilateral changes extends beyond the mere duty to provide notice and an opportunity to bargain about a particular subject matter; rather it encompasses a duty to refrain from implementation at all, absent overall impasse on bargaining for an agreement as a whole." RBE Electronics of S.D., 320 NLRB 80, 81 (1995). The Board has recognized at least two limited exceptions to this rule.
In RBE Electronics, the Board recognized an exception for economic exigencies where time is of the essence and prompt action is required. Under this exception, the Employer must show that the exigency was caused by external events, was beyond the employer's control, or was not reasonably foreseeable.
We first decided that the Employer had not presented sufficient evidence to establish an economic exigency. While the increase in insurance premiums was substantial, the Employer did not present evidence to establish that the increase would have placed it in "straitened financial circumstances." See Maple Grove Health Care Center, 330 NLRB 775, 779 (2000).
The Board recognized a second exception to an employer's bargaining obligation in Brannan Sand and Gravel, 314 NLRB 282 (1984), which involved annual adjustments in benefits. The Board stated that an employer is not obligated to refrain from implementing proposed changes in health care plans until impasse is reached in overall negotiations where the employer has a practice of reviewing and adjusting its health care plan annually. To meet the Brannan Sand and Gravel exception, an employer must demonstrate that it has a past practice of reviewing and adjusting its insurance plan annually, and that it gave the union and an adequate notice and an opportunity to bargain.
We decided that the Employer was privileged to have unilaterally changed insurance plans under this exception. The Employer clearly had a practice of reviewing its insurance expenditures annually and making adjustments. The Employer also had given the Union notice and opportunity to bargain over the change approximately one month before the existing plan expired. By failing to avail itself of that opportunity, the Union waived its right to bargain over the change. Accordingly, we decided not to issue complaint in this case.
UNION DUTY OF FAIR REPRESENTATION
In a Section 8(b)(1)(A) case involving Communications Workers v. Beck, 487 U.S. 735 (1988) (Beck), we decided not to defer to an arbitral award issued under the Union's internal arbitration procedure.
The Charging Party objector notified the Union that he was challenging certain expenditures which the Union had allocated as chargeable. The objector requested review of his challenge under the Union's arbitration process. After conducting a hearing, an arbitrator issued a decision denying the objector's challenge. The arbitrator, who did not make specific fact findings, concluded that the Union had "satisfied the standards applicable to the determination of challenges to agency fees."
The objector then filed this charge alleging that the Union violated its duty of fair representation by charging fees that included certain expenditures. We decided not to defer to the arbitrator's award and instead to undertake a plenary review of the objector's evidence.
The Board has already held that deferral to pending arbitration proceedings is not appropriate for unfair labor practice charges dealing with Beck objections. See, e.g., California Saw and Knife Works, 320 NLRB 224, 276-77 (1995), enf'd sub nom. IAM v. NLRB, 133 F.3d 1012 (7th Cir.), cert. denied sub nom. Strang v. NLRB, 525 U.S. 813 (1998); IUE (Paramax Systems Corp.), 322 NLRB 1, 2 n.5 (1996), review granted on other grounds and remanded sub nom. Ferriso v. NLRB, 125 F.3d 865 (D.C. Cir. 1997). Our case was one of first impression, however, because the Board has not yet decided whether it would defer to a Beck arbitral award that had already issued.
In considering this issue, we noted that there was no contractual relationship between the objector employee and the Union. The Beck objector therefore was not governed by the policy that requires parties to abide by the grievance-arbitration process in their bargaining agreement. While Section 10(a) of the Act grants the Board sole authority to resolve allegations of violations of the Act, the Board has permitted, as a narrow exception to that sole authority, deferral of certain types of unfair labor practice charges pending an arbitrator's interpretation of a collective-bargaining agreement. A Beck challenge-arbitration procedure is not analogous because it is not part of a collectively-bargained process.
We therefore decided to undertake a de novo review of the evidence, gathered in large part through the Union's challenge-arbitration procedure, to assess whether the Union's allocation of expenses violated the Act.
Providing Beck Notice and Financial
We concluded that a union charging nonmembers a service fee for use of its exclusive hiring hall must provide notice to the nonmembers of their right to request audited information substantiating that the service fee is used only for expenses required to support the hiring hall. A non-union member was obligated to pay a referral fee consisting of 4% of his wages, for the use of the Union's exclusive hiring hall. The Union informed the nonmember that he had the right to revoke his agreement to pay the fee, but that if he did he would no longer be eligible to be referred by the Union to any jobs. The nonmember then objected to the amount of the hiring hall referral fee. However, the nonmember did not ask the Union for information on how its hiring hall fee was calculated.
The Union provided an unaudited financial statement and "Profit and Loss" statement which listed both membership dues and referral fees as revenue. However, these statements contained no specific breakdown of hiring hall expenses used for operation of the hiring hall and other expenses not related to the referral process. The Union maintained that all monies collected from referral fees were used only for the operation of the hiring hall.
We first decided that as part of its duty of fair representation, a union operating a hiring hall must limit any service fee it charges nonmembers to expenditures that are directly related to the operation of the hall.
In cases decided before Beck, the Board held that a union could charge nonmembers an exclusive hiring hall fee which was "roughly equivalent" to monthly dues in the absence of a showing that the nonmember was required to pay more than his "fair share" for the use and operation of the hiring hall. See, e.g., J. J. Hagerty, Inc., 153 NLRB 1375, 1377 (1965), enf. 385 F.2d 874 (2nd Cir. 1967), cert denied 391 U.S. 904 (1968). This "rough equivalence" standard was undermined by the Beck decision, which set a new standard that limits unions to charging nonmembers fees that are directly related to chargeable activities. We therefore decided that in determining the proper service fee, it is more consistent with the underlying policies of the Beck decision to examine each hiring hall expense to determine whether it is germane to the operation of the hiring hall.
We next decided that, upon request, a union should be required to provide non-members with financial information concerning the hiring hall service fee. The obligation of a union to limit service fee charges to expenses directly related to the operation of a hiring hall implies an obligation to provide information that the service fees are strictly limited to expenses germane to the operation of the hiring hall. Such a duty to provide information is analogous to the obligation of a union to provide information assuring users of the hall that the union is not engaging in discriminatory referral practices. NLRB v. Electrical Workers Local 112, 827 F.2d 530 (9th Cir. 1987).
We also decided that such financial information must be independently audited. The fundamental purpose for requiring an audit of union expenditures is to provide objecting nonmembers with a reliable basis for calculating the fees they must pay. For example, if an nonmember employee chooses to object to paying dues for activities not germane to the union's role as bargaining agent and seeks to obtain a reduction in fees for such activities, the employee must be apprised of the percentage of the reduction and the basis for the calculation. Such verification must be provided in the form of an audit which must be adequate to determine that the expenses claimed were in fact made. California Saw & Knife Works, 320 NLRB 224, 242 (1995); AFTRA (KGW Radio), 327 NLRB 474, 475-477 (1999). We decided that similar requirements should apply to the verification of hiring hall fees.
We finally decided that unions operating exclusive hiring halls must provide notice to nonmember hiring hall users of their service fee obligations and rights.
The Board in California Saw indicated that the obligation to provide Beck notice protects the interests of individual nonmember employees "without compromising the countervailing collective interests of bargaining unit employees in ensuring that every unit employee contributes to the cost of collective bargaining activities." Just as considerations of balance and fairness require that a union give notice of Beck rights before exacting dues pursuant to a union-security clause, considerations of balance and fairness should require that a union give notice to nonmember hiring hall users of the union's obligation to provide requested information regarding hiring hall expenses before exacting a hiring hall service fee. A union operating an exclusive hiring hall has a duty of fair representation at least equal to that of unions operating under union-security clauses. We therefore concluded that it would be inconsistent with California Saw to deny nonmember hiring hall users notice rights analogous to those of nonmember employees hired under union security clauses.
In our case, the nonmember hiring hall user objected to the amount of fee he was being charged. While it does not appear that the nonmember ever made a specific request for financial information, it seemed apparent that any failure to request such information was due to his not having been informed of a right to such information. This situation illustrated that notification of such rights to nonmembers is of more than theoretical importance.
With regard to the method by which such information is provided to nonmembers, we realized that hiring hall procedures vary widely depending on the nature of the industry. Thus, no single method of notification, such as the mailing of letters or the posting of a notice in the hall, should be imposed on all exclusive hiring halls. Rather, unions operating exclusive hiring halls should fashion some written form of notice to nonmembers of their right to request information verifying that the entire service fee payment is germane to the operation of the hiring hall.
UNION RESTRAINT OR COERCION
Seeking Arbitration Award to Accrete New
We decided that the Union violated Sections 8(b)(1)(A) and (2) of the Act by filing a grievance which sought to require the Employer to apply the terms of an existing collective-bargaining agreement to newly opened stores.
In the past when the Employer had opened either new stores or stores it had purchased, the Employer had voluntarily recognized the Union upon its demonstration of majority support. The Employer departed from this practice in September 1998, with no Union opposition. Upon the purchase of an entire group of stores, the Employer recognized another union which was the incumbent representative at about 20 these stores, and yet another incumbent union at two other stores. In 14 stores where there was no incumbent union, the Employer recognized the Union upon proof of majority support. However, beginning in about February 2000, the Employer ceased voluntarily recognizing the Union at new stores, even after the Union had obtained cards from a majority of the employees.
In December 2000, the Union requested arbitration of a grievance seeking to include within the Union's bargaining unit "all employees" employed by the Employer in stores opened on or after February 1, 2000, and seeking to cover such employees under the Union's bargaining agreement.
The Union cited the Employer's long standing practice of "accreting" new stores into its chain-wide bargaining unit upon the Union's demonstration of majority status. The Union claimed that the Employer had wrongly disrupted this practice when it began to refuse to accrete new stores into the overall unit, and instead began to collude with another union to establish that union as the bargaining representative at newly opened stores. However, the Union argued in its grievance that it no longer need demonstrate majority status to attain recognition at new stores.
We decided that the Union violated the Act by using arbitration to seek an unlawful result: accreting employees into the unit with no showing of majority status.
When a "[u]nion's arbitration demands are contrary to its statutory collective-bargaining obligations, the Union's arbitration demands have an objective that is illegal under federal law." Chicago Truck Drivers (Signal Delivery), 279 NLRB 904, 906-907 (1986) (union's insistence on the arbitration of grievances seeking to merge three historically separate bargaining units violated Section 8(b)(1)(A) and 8(b)(3) since the proposed merger would have introduced impermissible multifacility and multiemployer bargaining).
We concluded that the Union's grievance sought an unlawful object because it sought recognition as the representative of employees in stores where the Union admitted it did not have majority status. If the arbitrator decided the grievance in favor of the Union on that basis, the decision would be contrary to Board law. See Safeway Stores, Inc., 276 NLRB 944, n.2, 951 (1985).
Our conclusion was supported by the Board's recent decision in Electronic Workers Local 221 (Kidder, Inc.), 333 NLRB No. 138, slip op. at 4 (2001). In Kidder, the parties' contract gave union grievance handlers superseniority only for layoff and recall. The contract clause therefore was valid on its face. The Board held that the union violated Sections 8(b)(1)(A) and (2) by pursuing an arbitration demand that the employer interpret that clause to also give the union president superseniority for job classification and wage protection. Since the union's interpretation of the clause would force the employer to violate Section 8(a)(3), the union's submission of the grievance to arbitration violated the Act. Here, as in Kidder, the Union's contractual recognition and arbitration clauses were lawful on their face. However, the argument urged by the Union before the arbitrator would transform those facially lawful clauses into clauses requiring accretion in circumstances where that would be contrary to Board law.
Accordingly, we decided that the Union violated the Act by maintaining a grievance seeking to accrete employees at newly acquired stores without having to prove majority status.
Threat of Discipline
We decided that the Union violated Section 8(b)(1)(A) of the Act by threatening employee/members with union discipline because of their participation in a Department of Labor (DOL) investigation.
Several Union members who were employees in the bargaining unit had filed complaints with the DOL alleging that the Employer unlawfully laid them off because they had filed safety complaints. The DOL conducted an investigation during which Union members provided testimony. The testimony of some members was favorable to the Employer, indicating that the layoffs were not related to the safety complaints. The DOL complainants then filed internal Union charges against the Union members who had provided this adverse testimony. Three members were tried before the Union's executive board; one was penalized and removed as Union steward.
Thereafter, another DOL complaint was filed alleging that the Employer had discriminated against the previous DOL complainants. During the DOL's investigation of this second complaint, several Union members became fearful that the Union would process internal charges against them if they gave testimony to the DOL. These members spoke with the Union business manager and the Union's attorney, asking whether protection against internal union charges would be provided to anyone who gave testimony. Although the Union officials told the members to cooperate with the DOL's investigation, they also said that they could not promise that the Union would dismiss or refuse to process any internal charges. Upon hearing the Union's position, the members told the Employer that they would not provide testimony in the DOL's investigation.
We decided that the Union violated Section 8(b)(1)(A) by impliedly threatening members for participation in a DOL investigation.
The Board has long held that Section 7 protects the right of employees to file charges with government agencies which enforce laws involving employment conditions. See Bighorn Beverage, 236 NLRB 736, 752-53 (1978), enfd. as modified, 614 F.2d 1238 (9th Cir. 1980); Tappan Co., 228 NLRB 1389, 1391 (1977) (complaint to OSHA). Section 7 also protects employee rights to cooperate in the resulting governmental investigation of the work place. Frederickburg Glass & Mirror, Inc., 323 NLRB 165, 179 (1979). Section 7 affords corresponding protection to the right of employees to refrain from making common cause with their fellow employees on such matters and instead to support their employer's claim that the working conditions conform to all legal requirements. See Teamsters Local No. 439 (University of the Pacific), 324 NLRB 1096, 1098 (1997). In our case, the Union's threat of internal discipline restrained and coerced employees in their Section 7 right to freely testify before the DOL.
We noted, however, that the Board has held that a union can lawfully impose internal discipline on employees who engage in Section 7 activity unless the union's discipline impacts the employer-employee relationship and impairs policies imbedded in the National Labor Relations Act. See Office and Professional Employees International Union, Local 251, AFL-CIO (Sandia Corporation d/b/a Sandia National Laboratories), 331 NLRB No. 193 (2000). In Sandia, the Board held that internal union discipline violates Section 8(b)(1)(A) only where it: (1) impacts on the employment relationship; (2) impairs access to the Board's processes; (3) pertains to unacceptable methods of union coercion; or (4) otherwise impairs policies imbedded in the Act. Moreover, if the union discipline falls within any one of these four areas and thus within the scope of Section 8(b)(1)(A), the lawfulness of that discipline is determined by balancing the employees' Section 7 rights against the legitimacy of the union interests. Local 254, Service Employees International Union, AFL-CIO, (Brandeis University), 332 NLRB No. 103, slip op. 3-4 (2000).
In our case, we decided that the Union's threat of discipline was within the proscriptions of Section 8(b)(1)(A) as discussed in Sandia because it impacted the employer-employee relationship, impaired policies imbedded in the Act, and did not advance any legitimate union interest.
The Union's threat to subject its members to disciplinary proceedings impacted on the employer-employee relationship because the foreseeable consequence of that threat was to influence the DOL investigation of complaints. The relationship of the complaining employees to their Employer obviously was at stake. The Union's threat also impaired policies imbedded in the Act. Section 7 has the effect of protecting the right of employees to testify freely before law enforcement agencies charged with resolving disputes about their working conditions. See Du-Tri Displays, Inc., 231 NLRB 1261, 1268-1269 (1977).
Finally, we decided that the Union advanced no legitimate interest that counterbalanced the injury to the employees' Section 7 rights. Unlike the circumstances in Sandia and Brandeis, the Union here was not dealing with a mere intraunion dispute. The Union had no legitimate interest in affecting testimony to government agencies regarding employment conditions.
UNION REFUSAL TO BARGAIN
Union Refusal to Negotiate
We decided that the Union violated Section 8(b)(3) of the Act by refusing to meet and bargain for a new contract in circumstances where the Employer had furnished some but not all relevant information requested by the Union.
The parties' previous contract limited application of its terms to the Employer's larger jobs. During negotiations for a new contract, the Union wanted to reassess the previous contract's application to only larger jobs. The Union therefore requested certain information including a list of the size of the Employer's jobs for prior years, the number of employees utilized for each job, the invoices for the cost of manning the smaller jobs with temporary agency employees, and the projected size of Employer jobs for the next few years.
The Employer furnished the Union with much of the requested information. Some of the requested information, including the invoices for the cost of temporary employees, was not provided. We issued a Section 8(a)(5) complaint alleging that the Employer failed to provide all the requested information. The Union refused to agree to a date for further negotiations, and refused to formulate an initial proposal, without all the requested information.
We decided that the Union violated the Act because the information withheld by the Employer was not so critical that it would have prevented the Union from engaging in meaningful initial bargaining.
In Food & Commercial Workers Local 1439 (Layman's Market), 268 NLRB 780, 784 (1984), the Board found a Section 8(b)(3) violation when the union refused to meet for a four month period. See also Local Union #612, Teamsters (AAA), 215 NLRB 789, 791 (1974) (unlawful refusal to meet for over two months). The Board has also held that, as a general rule, a pending unfair labor practice charge does not relieve a party of its statutory obligation to bargain. See FCWU, Local 1439 (Layman's Market), supra, 268 NLRB at 784.
We decided that the Union in our case was not relieved of its bargaining obligation merely because it had filed a charge, and merely because the Employer had failed to furnish the totality of the requested information. The Union had received sufficient information not only to allow it to engage in meaningful bargaining, but also to formulate an initial bargaining position, particularly since the Union had already decided to bargain for increased contract applicability.
We therefore decided that the Union violated Section 8(b)(3) by failing to submit an initial proposal to the Employer for a new contract, and also by failing to agree to a date for bargaining.
Nationwide Broad Order
In another case, we decided to seek a broad, nationwide order against the Union's secondary conduct which involved multiple neutral employers.
The Union had an economic dispute with the Employer. The Employer in turn was doing business with Company A, a railroad carrier who did business all around the country. There was no evidence that Company A and its affiliates were related to the Employer or were performing "struck work" for the Employer. Therefore, the Union had only a secondary and not a primary dispute with Company A. See National Woodwork Manufacturers Association, et al. v. NLRB, 386 U.S. 612, 644-45 (1967).
The Union first violated Section 8(b)(4)(ii)(B) with respect to Company A at a location in Alabama. On that occasion, Union agents issued a threat to Company A to "stop this jamboree project." We viewed this as an unrestricted threat to picket the premises of a neutral person. See, e.g., Teamsters Local 917 (Industry City), 307 NLRB 1419, 1422 (1992) (threat to picket entire complex unlawfully enmeshed neutral employer).
The Union also violated Section 8(b)(4)(B) as a result of the conduct of Union B, which represented some of the employees of Company A. The Union had sent Union B a letter requesting that Union B's members honor the Union's picket line regardless of whether there was a reserved gate system. Such an over broad request violates Section 8(b)(4)(i)(ii)(B). See, e.g., Operating Engineers Local 150 (Harsco Corp.), 313 NLRB 659 (1994), enfd. 47 F.3d 218 (7th Cir. 1995).
Union B posted the Union's unlawful request on Union B's website. Union B's website publication constituted an inducement of neutral employees to cease performing services for Company A, which was an unlawful inducement under Section 8(b)(4)(i)(B). The Union attempted to avoid liability for Union B's posting by claiming that the Union had never intended Union B to post the letter on its website. We decided, however, that Union B's conduct was a reasonably foreseeable result of the Union's having sent its letter request for help to Union B. See ILA v. Allied International, Inc., 456 U.S. 212, 224 (1982) ("The union must take responsibility for the 'foreseeable consequences' of its conduct"). Union B therefore had acted as the agent of the Union when it posted the letter, and the Union was liable for Union B's posting.
The Union also violated Section 8(b)(4)(ii)(B) when it sent letters to customers of Company A, announcing an intention to picket Company A. Since the Union had no primary labor dispute with Company A, these letters were an unlawful restraint or coercion of neutral persons, Company A and its customers. See, e.g., Electrical Workers IBEW Local 2208 (Simplex Wire), 285 NLRB 834, 838 (1987).
We decided to seek a nationwide, broad order because the above conduct involved the restraint and coercion of multiple neutrals in different locations around the country, and also demonstrated a continuing proclivity to violate the Act. See, e.g. Sheet Metal Workers Local 80 (Ciamillo Heating), 268 NLRB 4, n. 1 (1983); Sheet Metal Workers Local 28 (Astoria Mechanical), 323 NLRB 204 (1997). Although the Union was based in Chicago, it had traveled afar to Company A work sites and property. The Union also had caused Union B to post material on an internet website which would be viewed nationwide, and had contacted Company A customers around the country. We also noted that both the Board and various courts recently had found other Section 8(b)(4)(B) violations by this Union. This pattern of conduct was evidence of the Union's proclivity to violate Section 8(b)(4)(B) and demonstrated that a broad order was appropriate here. We therefore decided to seek both a broad and a nationwide order against the Union.
Sporadic Picketing Over 30 Days
We decided that a local Union violated Section 8(b)(7)(C) where its picketing occurred over a time period greater than 30 days, even though actual picketing occurred on only three or four days.
The Employer, an electrical contractor, hired two individuals, subsequently identified as Union "salts" who exercised their right to organize the employees of the Employer during non-work time. Shortly thereafter his hire, one of the "salt" employees talked to his supervisor about the Employer's becoming a union company. When the Employer then laid off both "salt" employees, the Union filed a Section 8(a)(3) charge.
The Union picketed one of the Employer's job sites on March 2 and 9 using area standards signs. On April 16 and 18, more than 30 days later, the Union similarly picketed another Employer site. One of the laid off "salt" employees told the Employer that "if his company would work with the Union, we could work something out" on the Section 8(a)(3) charge over the layoffs of the "salt" employees. The "salt" employee indicated that he wanted the Employer "to consider recognizing the Union."
We decided that the Union violated Section 8(b)(7)(C) because its picketing was recognitional and had occurred over a time period longer than 30 days.
Section 8(b)(7)(C) privileges a union to engage in recognitional picketing for a reasonable period of time not to exceed 30 days. In Electrical Workers, Local 265 (R P & M Electric), 236 NLRB 1333 (1978), enf'd 604 F.2d 1091 (8th Cir. 1979), a union picketed on October 11 and then again on November 23-24. The Board noted that an initial letter from the union requested that the employer meet in order to reach an agreement over minimum standards of wages, hours and "working conditions." The Board also noted that the union's picket sign protested the employer's failure to pay "union wages and conditions." The Board concluded that at least one object of the union's picketing was to achieve recognition and therefore found a violation of Section 8(b)(7)(C).
Like R P & M, our case involved picketing that was sporadic in nature, but occurred over a period of more than 30 days. In our case, statements indicating a recognitional object were made by the "salt" employees both before and after the picketing, which made ours a stronger case for recognitional picketing than R P & M.
We distinguished Mine Workers District 17 (Hatfield Dock), 302 NLRB 441 (1991) where the Board held that a bare threat of recognitional picketing, with no actual picketing, is insufficient to start the 30 day period for Section 8(b)(7)(C). Our case did not involve a mere threat to picket. In addition, the Board in Hatfield Dock distinguished R P & M as a case in which actual picketing had occurred. We therefore decided to issue complaint against the Union's sporadic organizational picketing.
PICKETING AND STRIKING AT HEALTH CARE INSTITUTIONS
Discharge of Picketing Employees
We decided that the Employer unlawfully discharged employees for picketing even though the picketing had been in violation of Section 8(g) of the Act.
During contract negotiations, the Union engaged in picketing without giving the Employer, a nursing home, prior written notice required by Section 8(g) of the Act. Two employees participated in the picketing while they were off-duty, and were discharged for that activity.
We decided to issue complaints against both parties: a Section 8(g) complaint against the Union's picketing, and a Section 8(a)(3) complaint against the employees' discharges.
The Union clearly had picketed in violation of Section 8(g). Concerning the Section 8(a)(3) allegation, we noted that the employees had only picketed and had not gone out on strike. Section 8(d) of the Act states that any employee "who engages in a strike within the appropriate period in [Section 8(g)] . . . shall lose his status as an employee . . ." Section 8(d) makes no reference to "picketing" and has never been construed by the Board to apply to any activity other than strike activity. We therefore decided that these employees did not lose their "employee" status by having merely picketed in violation of Section 8(g).
Our conclusion was supported by the legislative history of Section 8(d). Statements in the legislative history indicate that Congress intentionally omitted Section 8(g) "picketing" from Section 8(d)'s loss of employee status provision. Although the Board had not yet addressed this issue, two administrative law judges have interpreted Section 8(g) in this manner. See Baptist Memorial Hospital System, 288 NLRB 1160, 1171 (1988); Retail Clerks Union Local 727 (Devon Gables Health Care Center), 244 NLRB 586, n.2, 587 n.5 (1979).
We noted that an employer may lawfully discharge non-striking employees who participate in picketing in violation of Section 8(b)(7) of the Act. See, e.g., Local 707, Motor Freight Drivers (Claremont Polychemical Corp.), 196 NLRB 613, 614 (1972). However, unlike Section 8(b)(7), Section 8(d) contains specific language addressing the consequences of employee activity in violation of Section 8(g). And the legislative history of Section 8(g) demonstrates that Congress intended to permit employer adverse actions only against employees who strike in violation of 8(g). Moreover, Section 8(g) is different from 8(b)(7) in that Section 8(g) protects the interests of a specific third parties, i.e., health-care facility patients, interests that were not affected by the picketing by off duty employees.
Accordingly, we decided that the Employer unlawfully terminated the employees who had only picketed and had not also gone out on strike.
PROCEDURE IN ULP CASES
Deferral to Arbitration of
Current Board precedent holds that issues concerning a refusal to furnish information are not subject to deferral to the grievance-arbitration process. United Technologies Corp., 274 NLRB 504 (1985); United States Postal Service, 302 NLRB 918 (1991). Accordingly, we issued complaint in two cases where the Employers had failed to provide requested information. However, we also decided to advance the argument that the Board should reconsider its deferral policy with respect to refusal to furnish information cases.
In the first case, the Union asked for information about the Employer's subcontracting plans in order to police and enforce the collective-bargaining agreement. In the second case, the Union sought information in order to investigate potential grievances. In both cases, the parties had long-standing collective-bargaining relationships which provided for final and binding arbitration.
The underlying disputes in these cases were particularly susceptible to resolution by an arbitrator. In the first case, for example, an arbitrator would be well suited to interpret the parties' subcontracting provision and also would be eminently qualified to determine what information was relevant to this issue. Once both disputes were in the contractual grievance and arbitration procedure, the arbitrators would be able to direct the Employers to disclose relevant information. The Unions could then determine whether to continue with the grievances.
We noted the Board's concern that deferral of information issues would result in a "two-tiered arbitration process" requiring a union to file a first grievance to obtain information as a necessary predicate to then process a second grievance. See General Dynamics Corp., 268 NLRB 1432, fn. 2 (1984); American National Can Co., 293 NLRB 901, 903 (1989). However, the Board's own process has inherent delays and also does not solve the conundrum of a two-tiered process. And as a practical matter from the Board's perspective, more deferrals to private dispute resolution mechanisms facilitate case handling and conserve Board resources.
Moreover, the Board's ruling on an information request does not always end the information dispute. For instance, the parties may be ordered to bargain about confidentiality or cost issues. In Metropolitan Edison Company, 330 NLRB No. 21 (1999), cited by then Chairman Truesdale in a speech discussing the deferral of information, see John C. Truesdale, NLRB Deferral to Arbitration: Still Alive and Kicking, presented at the National Academy of Arbitrators, 53rd Annual Meeting June 3, 2000 (transcript available at www.nlrb.gov/press, the union grieved an employee discharge and then made an information request, seeking the names of two informants who provided the information that led to the discharge. When the employer refused, the union filed an unfair labor practice charge. The processing of the grievance was delayed while the information issue languished before the Board.
The Board ultimately concluded that the employer violated the Act by failing to bargain over accommodating the union's request. The Board did not order the employer to turn over the information, however. Rather, the Board directed the employer to bargain with the union to determine if there was an alternative method to satisfy the union's information request. Chairman Truesdale noted that, fortunately, the parties had long since settled the underlying discharge grievance. However, the only options for the union were to either proceed to arbitration without the information or wait until the Board ruled. This was not palatable to either party. From the employer's perspective, for example, it would have faced enormous back pay liability due to the delay.
We recognized that Metropolitan Edison represents an extreme example of litigation delay in refusal to furnish information cases. The point is, however, that arbitration can often provide a more efficient and economical approach to refusal to furnish information disputes in established collective-bargaining relationships.
The Board already encourages parties to utilize their grievance procedure and will defer to an arbitrator to protect the statutory rights of employees allegedly disciplined or discharged for their union activities. There is no reason to expect that the arbitration process would not also be appropriate to allow the parties to long standing and amicable relationships to resolve their differences concerning requests for information generated under the parties' collective bargaining agreement. Accordingly, we argued that the Board may wish to alter its longstanding prohibition concerning the refusal to defer requests for information in such circumstances.
Our last reported case involved whether to seek certain consequential damages as a remedy for expenses which employee discriminatees incurred after their unlawful discharges.
The Employer had unlawfully discharged two Union supporters because of their union activities. The employees had been employed as truck drivers and were unable to obtain substantially equivalent employment. One employee's interim earnings totaled only $10,518. Had he remained employed, his earnings would have been $61,693. The other employee's interim earnings were $9077.79 compared to $75,401 he would have earned with the Employer.
Both employees were unable to pay their bills including mortgage, credit cards, bank loans, life and health insurance. The employees' credit also may have been damaged. The Employer had not provided medical or life insurance. Both employees had been able to maintain life and medical insurance for themselves and their families until their discharges.
We considered whether to seek consequential damages including foreclosure charges, damage to credit, medical bills, finance charges and fees for late loans payments, repossession costs and storage fees for a repossessed automobile, and the amount necessary to obtain similar homes with similar mortgage terms and a similar automobile with the same payment terms.
We decided that, in the absence of a clear nexus between the Employer's unfair labor practices and these specific consequential damages, it was not appropriate to seek a remedy for those damages.
The language of both Section 10(c) of the Act and its legislative history is broad enough to conclude that the Board may order a remedy for economic consequences directly resulting from an employer's unfair labor practice. However, the Board generally has refused to order certain types of compensation. For example, in Operating Engineers Local 513 (Long Const. Co.), 145 NLRB 554 (1963), the union violated Section 8(b)(1)(A) by causing injury to several employees, rendering them unable to work. The Board held that it would not effectuate the policies of the Act to award backpay or other compensatory relief in this situation. Id. at 555. The Board noted that it is within the power of the State to enjoin and remedy the consequences of such conduct so that the lack of a Board remedy would "not leave such employees without redress against those responsible for their injuries." Id. at 556. Accord: Graves Trucking, 246 NLRB 344, 345 n.8 (1979), enfd. as modified 692 F.2d 470 (7th Cir. 1982).
Current Board law does not permit recovery for collateral losses. Consistent with Board law, we decided not to seek consequential damages including foreclosure charges, damage to credit, finance charges and late fees for loans, repossession costs and storage fees for a repossessed automobile, and the amount necessary to obtain similar homes and a similar automobile. These were "collateral losses" resulting from "credit problems."
As for medical and insurance expenses, the Board has ordered reimbursement for medical expenses only when a discriminatee has lost employer-provided insurance upon unlawful discharge. See Freeman Decorating Co., 288 NLRB 1235 (1988). We decided not to seek an order for the reimbursement of medical expenses in our case because the employees did not have Employer provided medical coverage. These losses were more appropriately categorized as collateral losses because there was no nexus between the unfair labor practice and the medical expenses. We reached the same result for life insurance premiums because the Employer also had not provided that insurance. Cf. Sioux Falls Stock Yards Co., 236 NLRB 543 (1978) (employer who provided life insurance ordered to reimburse employees for premium payments that employees paid in order to maintain their life insurance coverage).
Accordingly, we decided not to seek any consequential damages for these two discriminatees.
Section 10(j) Authorizations
During the 15 month period from June 1, 2001 through August 31, 2002, the Board authorized a total of 15 Section 10(j) injunction proceedings.1 Most of the cases fell within factual patterns set forth in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7 and 79-77.2
Four cases were somewhat unusual and therefore warrant special discussion.
In the first case, the union represented some 230 employees of a service contractor that provided roadway transportation services to a railroad's work crews. The Board had certified the union and the parties were signatory to an existing collective-bargaining agreement. During the labor contract's term, another service contractor bid on and was awarded the service contract to provide the roadway transportation work at issue. This other employer had a labor agreement with a second labor organization covering similar roadway transportation work for the same railroad, albeit in another part of the country. Upon the effective date of the new service contract, the new employer hired most of the predecessor's employees. The new employer, however, failed and refused to recognize and bargain with the union and instead granted recognition to the second union and applied the terms of the other collective-bargaining agreement to this unit. The Region issued a Section 8(a)(1),(2) and (5) complaint against the new employer and a Section 8(b)(1)(A) complaint against the second union, on the rationale that (1) the union's bargaining unit had not been accreted into the second union's bargaining unit; (2) the new employer was a successor employer with a bargaining obligation with the union; and (3) the employer's recognition of the second union for the newly bid service work was unlawful assistance to a labor organization.
We concluded that Section 10(j) proceedings were necessary in this case. Absent interim relief, the new employer would both improperly entrench a minority union in the unaccreted unit and, during Board litigation, would irreparably undermine employee support for the bona fide collective-bargaining representative.
After the 10(j) petition was filed in district court, the Region approved a settlement of the underlying unfair labor practice proceeding.
In the second case, the union represented a small unit of 7 port engineer employees of a crane maintenance service contractor at a municipal shipping port. During bargaining for a new labor agreement, the employer began to unilaterally assign unit work to non-unit employees, declared an impasse prematurely, created a new non-unit staff position and announced that the port engineers were statutory supervisors. The employer then withdrew recognition from the union and terminated all the employees, replacing them with persons in the new non-unit staff position. The Region issued a Section 8(a)(1),(3) and (5) complaint, based on the conclusions that (1) the port engineers were statutory employees; (2) their replacement by non-unit personnel was discrimination based on their union representation; and (3) the employer's withdrawal of recognition from the union was similarly unlawful.
We concluded that interim relief under Section 10(j) was warranted in this case. Absent prompt injunctive relief, there was the danger that the discharged unit employees would scatter and would be unwilling to accept ultimate reinstatement under a Board order, thus precluding an effective restoration of the parties' bargaining relationship. Such result would irreparably destroy the effectiveness of the union in representing this unit. The interim reinstatement remedy was not viewed as imposing an undue burden on the employer. We also sought an interim bargaining order in favor of the union and a restoration of the prior wages and working conditions in order to restore the proper status quo ante.
The district court granted the requested injunctive relief.
In the third case, the employer, a construction industry supplier of sand and gravel, allegedly engaged in a campaign of serious violations in order to interfere with a union's organizing drive among a unit of 18 employees. After the union obtained a card majority consisting of 17 authorization cards, the employer engaged in unlawful interrogations and threats of futility, plant closure and layoffs. It then laid off four union supporters and granted three employees wage increases and one employee health insurance benefits. Thereafter, the employer discharged a union leader at a meeting with pro-union employees and laid off a pro-union probationary employee. The employer then distributed to employees letters which explained how employees could revoke their union authorization cards. Within five days, nine unit employees sent revocation letters to the union; an additional two employees sent revocation letters to the union over the next week. Only one employee attended a union meeting held subsequent to these events. The Region's complaint alleged violations of Section 8(a)(1),(3) and (5) and sought a remedial bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
We concluded that Section 10(j) proceedings were warranted in this case, including seeking an interim bargaining order under a Gissel rationale. Irreparable harm to the statutory rights of employees was seen as overwhelming, demonstrated by the drastic fall off of the union's employee support as a result of the employer's violations. The high number of employee revocations of union cards and the single employee who attended the recent union meeting clearly revealed the "chilling" impact of the employer's unfair labor practices upon unit employees and justified the need for broad injunctive relief.
The district court granted the requested injunctive relief.
The fourth case involved an employer that operated a hotel whose 14 building service employees had recently selected the union in a Board election to be their collective-bargaining representative. The parties had been bargaining for about one and 1/2 years since the union's certification, without reaching a labor agreement. The Region's Section 8(a)(5) complaint alleged that the employer was bargaining in bad faith without any intention of reaching a labor agreement with the union. Among the indicia relied upon by the Region to support its bad faith bargaining allegation were numerous statements made by the employer's owner that it was unwilling to change anything from "the normal," that it was unwilling to give up control over running its business and that the union and its agents were "extortionists." The employer's bargaining proposals were consistent with the owner's statements, i.e., the employer never offered to implement any change in the unit employees' existing terms or conditions of employment; the employer also insisted upon the right to change any agreed-upon term or condition of employment in the parties' labor agreement without the union's consent; and the employer also took a rigid position to not agree to any form of third party resolution of grievances. As a result of the parties' lengthy bargaining process, employee support for the union had diminished: from an average union meeting attended by ten employees, a recent union meeting could not draw a single unit employee. Further, two employee members of the union negotiating committee stopped attending bargaining sessions without explanation. Since that date negotiations have taken place without employee input.
We concluded that injunctive relief under Section 10(j) was warranted in this case. Interim relief was seen as necessary to prevent irreparable harm to the parties' collective-bargaining process, to ensure against the union's potential irreparable loss of unit employee support and the loss of the benefits of good faith bargaining during Board litigation, and to prevent unwarranted industrial unrest. The need for injunctive relief was accentuated where, as here, a newly certified union is attempting to negotiate its first labor agreement, where such unions are particularly vulnerable to employer misconduct.
The Region's 10(j) petition is currently pending before the district court.
The 15 authorized cases fell within the following categories as defined and described in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7 and 79-77:
1Of these cases, the General Counsel directly authorized one Section 10(j) proceeding under the temporary delegation from the Board of December 21, 2001, of "full authority on all court litigation matters."
2See also NLRB Section 10(j) Manual, Appendix A, "Training Monograph No. 7."
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