NATIONAL LABOR RELATIONS BOARD
OFFICE OF THE GENERAL COUNSEL
WASHINGTON, D.C. 20570
|FOR IMMEDIATE RELEASE
|Friday, May 2, 2003
NLRB GENERAL COUNSEL ARTHUR ROSENFELD
ISSUES REPORT ON RECENT CASE DEVELOPMENTS
National Labor Relations Board General Counsel Arthur F.
Rosenfeld today issued a report on casehandling developments in the Office of
the General Counsel. The report is in two parts. Part I presents cases in which
his office addressed various issues arising out of the Supreme Court's decision
in BE & K Construction Co. v. NLRB, 122 S. Ct. 2390 (June 24, 2002).
Part II is the traditional report and covers selected cases of interest that
were decided during the period from September 2002 through January 2003. It
discusses cases that were decided upon a request 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
# # #
REPORT OF THE GENERAL COUNSEL
During my term as General Counsel, I have pledged to keep
the labor-management community fully aware of the activities of my office. It is
my hope that this openness will encourage compliance with the Act and
cooperation with agency personnel. As part of this goal, I have continued the
practice of issuing periodic Reports of decisions raising significant legal or
This is a two-part report. Part I presents cases in which
my office addressed various issues arising out of the Supreme Court's decision
in BE & K Construction Co. v. NLRB, 122 S. Ct. 2390 (June 24, 2002).
It is clear to me that this issue is of considerable importance to practitioners
and for this reason warrants expansion of this report and coverage in a separate
Part II is the traditional report and covers selected
cases of interest that were decided during the period from September 2002
through January 2003. It discusses cases that were decided upon a request 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.
I hope that this information will be of assistance to the
labor law Bar.
Arthur F. Rosenfeld
My contacts with practitioners around the country in the
months since the Supreme Court's BE & K decision has evidenced a
heightened interest in positions my office is taking in BE & K cases.
In response, I decided to set forth my actions in several recent cases
presenting BE & K issues.
The Supreme Court's decision in BE & K
addressed the circumstances under which the Board may find a lawsuit to be an
unfair labor practice. After the Court's decision, I issued instructions to the
Regional Directors concerning issues arising from that decision. That
memorandum, dated September 20, 2002, is available on the Agency's Website
Several issues remain open after the Court's BE & K
decision. The cases in this report will permit the Board to clarify several
of those issues, including: (1) whether the Board should adopt the standard
articulated in Professional Real Estate Investors v. Columbia Pictures
Industries, Inc., 508 U.S. 49 (1993), and discussed in BE & K, in
determining whether a lawsuit is reasonably based; (2) if a lawsuit is
reasonably based, what standard the Board should apply in determining
retaliatory motive; (3) whether the filing and maintenance of a reasonably based
lawsuit can nevertheless be an unfair labor practice if the evidence of
retaliatory motive is strong enough; and (4) whether the Board should continue
to apply footnote 5 of Bill Johnson's Restaurants v. NLRB, 461 U.S. 731
(1983), in preemption and illegal object cases.
Reasonably Based, Nonretaliatory
In three cases, we found that the respondent's lawsuits in
state or federal court, which were ultimately unsuccessful, were nonetheless
reasonably based following the dictates of BE & K because they raised
material factual issues or nonfrivolous legal issues. See Bill Johnson's
Restaurants v. NLRB, 461 U.S. 731, 746-47 (1983).
We found in each of the cases that the evidence did not
show that the lawsuit would not have been filed "but for a motive to impose
the costs of the litigation process, regardless of the outcome" - the test
that the BE & K majority suggested might render a reasonably based
lawsuit unlawful. See 122 S. Ct. at 2402. Therefore, we found that none of these
reasonably based lawsuits violated the Act.
Applying the Supreme Court's decision in BE & K,
we decided that an Employer's lawsuit was reasonably based where it presented a
novel issue of state law and where the trial court ruled in favor of the
Employer in the lawsuit, even though the appellate court later overruled that
decision. We further determined that the lawsuit was not sufficiently
retaliatory so as to constitute an unfair labor practice.
During a union organizing campaign, an organizer removed
several bags of trash from a dumpster located on the Employer's property
adjacent to a public sidewalk. The Employer filed a state court lawsuit,
alleging that the action constituted burglary, conversion of property, receipt
of stolen property, criminal trespass, and racketeering.
The lower court granted the Employer's motion for summary
judgment and ruled that the organizer and the Union had committed criminal acts
by taking the garbage without the Employer's consent. Upon appeal, however, the
state appellate court held that the trash constituted abandoned property and,
thus, its removal was lawful.
This case was pending before the Board when the Supreme
Court's decision in BE & K issued. The ALJ had originally relied on
the analysis that the Court subsequently rejected in BE & K, ruling
that the Employer violated the Act because the court of appeals had dismissed
the suit and because there was evidence of a retaliatory motive. After BE
& K issued, the Board remanded the case to the ALJ.
On remand, we argued that, in light of BE & K,
the Employer's lawsuit, while ultimately without merit, nonetheless was
reasonably based. Although the state appellate court ordered summary judgment
against the Employer on all claims, we concluded that the legal questions posed
were not "plainly foreclosed as a matter of law" or
"frivolous." See Bill Johnson's Restaurants, 461 U.S. at
746-47. Since there was no controlling legal authority, the Employer reasonably
maintained that it had a privacy interest in the trash and that the trash was
not "abandoned" property under state law. The Union even conceded that
the case involved several substantial questions of first impression. Also, the
fact that the trial court granted the Employer's summary judgment motion
indicated that the Employer had a reasonable basis for believing it could
prevail in the suit.
As to retaliatory motive, we concluded that there was
insufficient evidence that the lawsuit would not have been filed "but for a
motive to impose the costs of the litigation process, regardless of the
outcome." See BE & K, 122 S. Ct. at 2402. We considered two
statements: first, the Employer told an employee that it had filed a lawsuit
that would keep the Union from operating; second, the Employer's counsel told
Union organizers that the lawsuit would result in a $3 million judgment against
the Union and that the organizers would end up working for the Employer. We
decided that those statements failed to show that the lawsuit would not have
been filed "but for" a motive to impose the costs of the litigation
upon the Union, regardless of the outcome. We thus sought withdrawal of the
In his decision on remand, the ALJ found that the
Employer's lawsuit still violated the Act. The ALJ did not discuss whether the
lawsuit was reasonably based. Rather, he based his decision on Justice Breyer's
minority opinion in BE & K suggesting that a reasonably based lawsuit
could still be unlawful if brought as "part of a broader course of conduct
aimed at harming the unions and interfering with employees' exercise of their
[Section 7] rights." See BE & K, 122 S. Ct. at 2403, Justice
Breyer, concurring. The ALJ concluded that ample evidence demonstrated the
Employer's unlawful motivation.
We filed exceptions with the Board, arguing that the ALJ
erred by failing even to discuss whether the Employer's lawsuit was reasonably
based, as required by BE & K. We further argued that the ALJ erred by
applying Justice Breyer's minority opinion. The majority in BE & K
indicated that a reasonably based lawsuit could not be unlawful unless, at a
minimum, the suit would not have been filed but for a motive of imposing the
costs of litigation. Justice Breyer's broader view was clearly rejected by the
majority. The case is pending before the Board.
In a similar case, we decided that under BE & K,
an Employer's motion for attorneys' fees, including two hours spent reviewing a
Board charge, was reasonably based because the employee had interjected the
Board proceedings into his unmeritorious state court lawsuit.
The employee filed a state court lawsuit against his
Employer alleging breach of contract, racial discrimination, and a tort claim. A
magistrate dismissed the suit, and the Employee appealed to superior court. In
his appeal, the employee moved for a continuance, asserting that the Board had
"incorporated the majority of [his] charges into [its] forum." The
superior court denied the continuance request and dismissed the employee's suit.
The Employer filed a motion with the superior court for
costs and attorneys' fees based on a statute allowing for recovery when a
complaint "lacks substantial justification." The accompanying detailed
fee billing included two hours for review of the Board charge in response to the
employee's request for a continuance. The employee filed a Board charge,
contending that seeking attorney's fees associated with an unfair labor practice
charge interfered with his Section 7 rights.
We concluded that the Employer did not violate the Act.
When the employee sought a continuance based on his assertion that the Board
proceedings were related - an assertion that the court rejected - the Employer's
review of the Board proceedings was necessary and, thus, not baseless or in
retaliation for any protected activity. We therefore dismissed the charge.
In this case, we decided that even though an Employer's
lawsuit against a Union was unsuccessful, it was nonetheless reasonably based
where the federal district court denied the Union's motion to dismiss and its
motion for summary judgment, signaling that the case presented disputed material
The Employer, a nonunion general contractor, submitted the
lowest bid or a major city project. The Union challenged the bid, claiming that
the Employer was not a responsible bidder. In response to the Union's challenge,
the city investigated and found that the Employer had a history of prevailing
wage law violations. The city therefore disqualified the Employer from the job.
The Employer sued the Union and the city in federal court,
alleging that, under 42 U.S.C. Section 1983, the Union and the city had
conspired by acting under color of state law to deny it substantive due process
rights. The district court denied the Union's motion to dismiss and its
subsequent summary judgment motion. After a bench trial, however, the court
dismissed the lawsuit, finding that the Union did not act in concert with the
city to deny the Employer its constitutional rights.
The ALJ found a Section 8(a)(1) violation because the
lawsuit was "unsuccessful" and filed in retaliation for Section 7
activities. The Board adopted the ALJ's recommended order and sought enforcement
in the Third Circuit. The case was pending before the Third Circuit when the
Supreme Court issued its decision in BE & K. The Third Circuit
granted the Board's request to remand the case to the Board for further
consideration in light of BE & K. On remand, the Board asked the
parties for their positions on BE & K's effect on the case.
On remand before the Board, we took the position that
under BE & K, the lawsuit was reasonably based because it survived a
motion to dismiss and for summary judgment, thus presenting triable issues of
fact. In Bill Johnson's, 461 U.S. at 749, the Supreme Court held that
where ongoing lawsuits presented triable factual issues, the Board should defer
to state court and should not seek to enjoin the lawsuit under Section 8(a)(1).
In light of BE & K, we can no longer rely on the mere fact that the
lawsuit was ultimately unsuccessful as a justification for finding it baseless.
Rather, we must independently determine whether the lawsuit was reasonably
based. Since the district court found that this case presented triable factual
issues, we concluded that it was reasonably based.
We further asserted that the lawsuit was not
"retaliatory" under BE & K. Thus, the BE & K
Court explicitly rejected the argument that reasonably based but meritless
lawsuits could be found retaliatory solely because the target of the lawsuit was
protected activity. Since there was no other evidence of retaliatory motive, we
requested that the Board dismiss the complaint.
Baseless and Retaliatory Lawsuits
Following the Supreme Court's instructions in BE &
K to determine whether a lawsuit was reasonably based, without reliance on
the lawsuit's ultimate lack of success, we determined in three cases that
respondents' lawsuits lacked a reasonable basis where they presented no material
factual issues or nonfrivolous legal issues. See Bill Johnson's Restaurants
v. NLRB, 461 U.S. at 746-47. Following the analysis set out in GC 02-09, we
further concluded that BE & K's "retaliatory motive"
discussion is limited to reasonably based lawsuits. We thus evaluated whether
these lawsuits were retaliatory utilizing existing Board standards, which
circuit courts have generally approved since Bill Johnson's.
In this case, we decided that an Employer's lawsuit
against a Union was baseless and retaliatory where the federal district court
granted the Union's motion to dismiss for failure to state a claim, where the
complaint failed to plead material elements of the cause of action, and where
ample other evidence showed retaliatory motive.
The Employer employed sheet metal workers who were
represented by one local Union, and plumbers and pipefitters who were
represented by another Local. The Employer and the Plumbers Local had engaged in
some bargaining but had never reached agreement. The relationship was marked by
several strikes, unfair labor practice charges, and Board decisions against the
The Sheet Metal Local, which had an agreement with the
Employer, administered a job targeting program that provided signatory
contractors with financial subsidies. The Sheet Metal Local began denying the
Employer's requests for use of the job targeting funds. The Employer contended
that the refusal to provide the job targeting funds was designed to pressure the
Employer to reach agreement with the Plumbers Local.
The Employer filed suit in federal district court against
both Unions based on the denial of the job targeting funds. The lawsuit alleged
that, in violation of Section 8(b)(4), the Plumbers Local coerced, threatened,
or otherwise restrained the Sheet Metal Local, its employees, and potential
customers by forcing the Sheet Metal Local to deny the job targeting funds to
the Employer. The suit also alleged that the Sheet Metal Local breached its
collective bargaining agreement with the Employer by denying the funds, despite
the fact that an arbitrator considered the contractual issue and reached the
opposite conclusion. In its lawsuit, the Employer charged that the Plumbers
Union had "filed numerous unfair labor practice charges and engaged in
mini-strikes and other activities."
The district court granted the Unions' dismissal motions
based on a failure to state a claim under which relief could be granted, Fed. R.
Civ. P. 12(b)(6). A federal appellate court affirmed.
This case also was pending before the Board when the
Supreme Court's decision in BE & K issued. An ALJ had found that the
lawsuit violated the Act because it was meritless based on the court of appeals'
dismissal of the suit and because there was evidence of retaliatory motive.
After BE & K's issuance, the Board remanded the case to the ALJ.
On remand before the ALJ, we argued that the Employer's
lawsuit was baseless because it failed to state a cause of action, thus raising
no material factual issues or unforeclosed legal issues. See Bill Johnson's,
461 U.S. at 746-47. We argued that the district court found that the claims
concerned primary, not secondary, conduct because the Sheet Metal Local, like
the Plumbers Local, represented the Employer's employees. Further, none of the
counts alleged conduct that constituted inducement within the meaning of Section
8(b)(4)(i), or threats, restraint or coercion within the meaning of Section
8(b)(4)(ii). Therefore, the lawsuit failed to plead critical elements of the
cause of action. Finally, as the district court found, the Employer's
allegations that the Sheet Metal Local breached its collective-bargaining
agreement lacked merit because the arbitrator's contrary decision bound the
In addition, ample evidence demonstrated the Employer's
retaliatory motive here. The lawsuit was retaliatory because, without legal or
factual basis, it attacked the Union's protected activity of acting in
solidarity with another union. Ample extrinsic evidence also supported a finding
of retaliatory motive, including the suit's timing, the Employer's hostility
toward protected conduct, and the Employer's iteration in its complaint of other
unrelated protected activity - the Plumber's Local's filing other ULP charges
and going out on strike.
In this case, we decided that an Employer's lawsuit
against a Union was baseless where the Act indisputably preempted the suit. A
reasonable litigant, therefore, should have known that he had no chance of
prevailing on the merits at the time he filed the suit. Because this lawsuit was
not reasonably based, the Supreme Court's statements in BE & K
concerning retaliatory motive were not implicated. Thus, we argued that the
lawsuit was retaliatory because it attacked protected Section 7 activity.
A construction Employer was awarded a construction
sub-contract from a general contractor. The general had signed a collective
bargaining agreement with a Union that required all subcontractors to be
signatories to the agreement. The Employer thus asked the Union if it could
become a signatory. When the Union requested specific information to
substantiate the Employer's claims that it had a long and successful history as
a union Employer, the Employer never responded. As a result, the Employer failed
to obtain a contract with the Union and lost the subcontract.
The Employer filed suit against the Union in state court
alleging four claims of interference with contractual relations and a common law
antitrust violation. The Employer based its lawsuit solely on the Union's
refusal to enter into a collective bargaining agreement.
The state court granted the Union's motion to dismiss. The
court determined that the Act preempted the four counts of interference with
contractual relations and dismissed them with prejudice. The court dismissed the
antitrust claim without prejudice, finding that it raised a federal issue. The
Employer did not refile this claim in federal court.
This case also was pending before the Board when the
Supreme Court issued its decision in BE & K. The ALJ had held that
the lawsuit was without merit because it was ultimately unsuccessful and found
the lawsuit retaliatory because it attacked protected Section 7 activity. The
Board remanded the case to the ALJ in light of BE & K.
On remand, we filed a brief with the ALJ arguing that
under the baselessness test announced in Bill Johnson's, the lawsuit was
not reasonably based. The claims presented no material factual issues or
unforeclosed legal issue because they were uncontrovertibly preempted.
A lawsuit is preempted when activities are "arguably
subject" to Section 7 or Section 8 of the Act. See San Diego Bldg.
Trades Council v. Garmon, 359 U.S. 236, 244-45 (1959). The interference with
contractual relations claims stemmed from the Union's refusal to enter into a
collective-bargaining agreement with the Employer. Because Section 7 protects
the rights of employees to receive services from unions to negotiate new
agreements, Section 7 arguably protected the Union's conduct. Because Section 8
prohibits the refusal to bargain when under a legal obligation to do so, Section
8 arguably prohibited the Union's conduct. In light of the indisputable NLRA
preemption, there were no material factual issues or unsettled legal principles
upon which to base the lawsuit. See BE & K, 122 S. Ct. at 2396; Bill
Johnson's, 461 U.S. at 746-47.
We also argued that the Employer's state antitrust
conspiracy claim was baseless. In Connell Construction Co., Inc. v. Plumbers
and Steamfitters Local Union No. 100, 421 U.S. 616, 635-36 (1975), the
Supreme Court held that the Act preempted state anti-trust laws attempting to
regulate union organizing. Given this foreclosed legal issue, the Employer
should have known that the Act preempted its cause of action. Also, under that
particular state's law, no private remedy for damages existed for state
anti-trust violations. Given that the Employer did not argue some reasonable
basis for overruling or reconsidering this legal principle, the anti-trust claim
was baseless when filed. The Board did not have to make credibility
determinations or resolve legal questions to find this lawsuit baseless; the
Plaintiff's complaint alone failed to state a cause of action. See Bill
Johnson's, 461 U.S. at 746-47.
The lawsuit was retaliatory because it interfered with
protected Section 7 activity - the Union s right to refuse to enter into a
voluntary agreement. The Supreme Court's decision in BE & K did not
affect this retaliatory motive analysis because this lawsuit, unlike the suit in
BE & K, was baseless. Thus, evaluating the lawsuit under BE & K's
parameters, we found that the lawsuit was baseless and retaliatory.
In his decision on remand, the ALJ agreed with our
analysis and found that the Employer's lawsuit still constituted an unfair labor
practice in light of BE & K. Thus, the ALJ agreed with that our
analysis as to baselessness on both the interference with contractual relations
claims and the state antitrust claim. He also found that the lawsuit attacked
protected activities - the rights of employees to bargain collectively through
representatives of their own choosing and to ensure the viability of a
In a similar case, we decided that an Employer filed a
baseless and retaliatory lawsuit where a health care Employer sought to enjoin a
strike, alleging that the Union gave an improper 10-day strike notice. We found
that this lawsuit was not reasonably based because the Board had indisputable
jurisdiction over this issue and, thus, the Act unquestionably preempted the
Three different Unions represented employees at several of
the Employer's nursing home facilities. Each Union provided the employer with
10-day strike notices, required under Section 8(g) of the Act, indicating that
the strike would commence in 14 days. Two days before the strike date, the
Unions provided the Employer with amended notices extending the time for the
commencement of the strike by 71 hours. The Unions began striking consistent
with this second notice.
The Employer filed a lawsuit in federal court alleging
that the Unions failed to comply with Section 8(g) because they had improperly
extended the strike's commencement by 71 hours without providing another 10-day
notice. The Unions moved to dismiss the Employer's lawsuit. The district court
granted the motion, finding that the lawsuit was preempted by the Board's
exclusive jurisdiction. A federal appellate court affirmed.
Meanwhile, before the district court had ruled, the
General Counsel issued a complaint against the Employer alleging that it had
violated the Act by refusing to reinstate the strikers when they made an
unconditional offer to return to work. The Employer, invoking the same arguments
that it raised in its federal lawsuit, argued that the strike notice failed to
comply with Section 8(g). The case before the Board thus raised the identical
issue as the federal lawsuit. The ALJ subsequently found that the strike was
protected under Section 8(g) based on "clear and consistent" precedent
and the failure to reinstate the strikers was thus unlawful. The Board later
affirmed the ALJ.
We issued a complaint under Bill Johnson's alleging
that the Employer's filing and maintenance of the lawsuit constituted a Section
8(a)(1) violation. The ALJ dismissed the complaint, finding that the lawsuit was
not maintained for a retaliatory motive. The case was pending before the Board
when the Supreme Court's decision in BE & K issued. The Board
remanded the matter to the ALJ.
On remand, we argued that the lawsuit was baseless because
it presented plainly foreclosed legal issues. The lawsuit was based solely on an
allegation that the Unions violated Section 8(g) of the Act. Because Section
8(g)'s provisions on strike notices are an area of exclusive Board jurisdiction
over which the district court indisputably lacked subject matter jurisdiction,
the lawsuit was clearly baseless.
We also argued that the Employer's lawsuit was brought
with a retaliatory motive. The lawsuit directly interfered with protected
Section 7 activity because it sought to enjoin a strike that the Act obviously
protected. Thus, since the Employer filed a baseless lawsuit interfering with
protected activity, it was retaliatory. Ample extrinsic evidence also showed
retaliatory motive, including the lawsuit's obvious lack of merit; its timing;
and the Employer's animus toward the Union.
Preemption and Unlawful Object Cases
We decided two cases arising under footnote 5 of Bill
Johnson's, where the Supreme Court noted that the baselessness/retaliatory
motive analysis does not apply to lawsuits that are federally preempted or that
have objectives that are illegal under federal law. 461 U.S. at 738 fn. 5.
Rather, under footnote 5, the Board could enjoin these lawsuits without applying
the reasonable basis/retaliatory motive analysis. Because the extent to which BE
& K affected the Board's view of footnote 5 is unclear, we have
presented this issue to the Board.
We determined that, where a nonunion contractor brought
state prevailing wage and anti-kickback claims against a union contractor for
accepting job targeting funds, the lawsuit was preempted by federal law.
The Union, which operated a job targeting fund, granted
the Union contractor's request for job targeting funds on a non-federal,
non-Davis-Bacon Act project. The nonunion contractor sued the union contractor
in state court, claiming that the union contractor violated prevailing wage and
anti-kickback statutes. The Ohio Supreme Court found the lawsuit preempted under
Manno Electric, 321 NLRB 278 (1996). After the U.S. Supreme Court denied
a petition for certiorari, the Region issued a complaint against the nonunion
contractor, alleging that it had violated Section 8(a)(1) by initiating and
prosecuting the lawsuit.
While the case was pending before the Board on a
stipulated record, BE & K issued. The Board remanded the case to the
We concluded that under well-settled Board law, the
Union's job targeting program constituted Section 7 protected conduct. See Manno
Electric, supra. We thus argued that the lawsuit, which alleged only state
law violations, was preempted by the Act. Our argument was supported by the
recent decision in Can-Am Plumbing, Inc. v. NLRB, 321 F.3d 145 (D.C. Cir.
Feb. 28, 2003), where the D.C. Circuit determined that BE & K does
not affect footnote 5 preemption. While the lawsuit here would unquestionably be
preempted and thus enjoinable under footnote 5, the effect of BE & K
on footnote 5 is not clear and the prosecution of this issue will give the Board
an opportunity to address its view of BE & K's effect on footnote 5.
In this case, we decided that, where a
collective-bargaining agreement did not contain a union security clause, a
Union's lawsuit seeking a "fair share" of dues from a non-member had
an illegal object under footnote 5 of Bill Johnson's and thus violated
The Union sent a notice to the Employer's nonunion unit
employees, informing them that employees covered by a union-security clause
could be required to become "financial core payers," paying only for
activities germane to collective-bargaining. The Union then brought a lawsuit in
state court seeking the charging party employee's "fair share" of
union dues. The court granted judgment for the Union and required the employee
to pay dues. The employee filed an appeal, which was pending when we decided
We concluded that under Bill Johnson's, the Union
violated Section 8(b)(1)(A) by filing and maintaining the lawsuit to recover
dues and fees because the lawsuit had an objective that was illegal under
federal law. In Golf Officials (PGA Tour), 317 NLRB 774, 778 (1995), the
Board held that a suit to recover dues and fees in the absence of a union
security clause had an illegal object because Congress had decided that such
dues and fees were not recoverable under the Act. Here, as in PGA Tour,
there was no contractual provision permitting the Union to require the payment
of dues by nonmembers. The Union's lawsuit thus had an illegal object under
footnote 5 of Bill Johnson's. Again, the Board will have an opportunity
to address the continued applicability of footnote 5.
EMPLOYER INTERFERENCE WITH PROTECTED
Denial of Employee Representative
In this case, we decided that a nonunion Employer
unlawfully denied an employee's request to have a coworker representative go
with her to a meeting over the employee's appeal of her discharge.
The Employer discharged the employee for unexcused
absences. The employee requested an appeal of the discharge under the Employer's
Dispute Resolution Procedure. That procedure allowed an employee to appeal a
discharge directly to the plant manager, who reviewed the reasons for the
termination and heard any documentary evidence or testimony offered by the
employee. The plant manager could overturn the discharge decision, and his
decision would be final and binding on both parties.
As the employee's appeal proceeded to a meeting with the
plant manager, she requested that she be allowed to bring a coworker
representative. The Employer replied that she could not. At the meeting, the
plant manager reviewed the employee's file, an internal report detailing her
attendance problems, and documents the employee attached to her appeal form. The
employee argued that her attendance points had been miscalculated and submitted
new documents on her behalf to the plant manager. After reviewing the documents,
the plant manager denied the employee's appeal.
We first decided that, as an employee not represented by a
union, this employee had a right to a coworker's presence at an investigatory
interview. We relied upon the D.C. Circuit's decision in Epilepsy Foundation
of Northeast Ohio v. NLRB, 268 F.3d 1095 (2001), enfg. 331 NLRB 676 (2000),
in which the court agreed with the Board that the Weingarten right (NLRB
v. J. Weingarten, 420 U.S. 251 (1975)) is "grounded in the language of
Section 7 of the Act," so that an employee's request for a coworker's
presence at an investigatory interview is concerted action for mutual aid and
We then decided that the meeting at which the employee
appealed her termination to the plant manager was an investigatory interview. We
noted that one of the potential outcomes of the appeal was that the plant
manager could reverse the termination decision. See Henry Ford Health System,
320 NLRB 1153 (1996). The appeal meeting therefore was investigatory because the
termination decision was not final until the appeal procedure was completed.
Permanent Replacement of Strikers
In this case, we decided that striker replacements were
mere temporary replacements based upon Target Rock Corp., 324 NLRB 373,
holding that replacements are not permanent where they are "at will"
employees who can be terminated at any time. However, we also decided to argue
that the Board should overrule Target Rock, to the extent it holds that a
statement of "at will" employment can, by itself, demonstrate
After the Union was certified in our case and the parties
were unable to agree on an initial contract, the Union went out on strike. The
Employer began hiring replacement employees. These employees completed the
Employer's standard application forms, which provided no information about
whether the jobs were temporary or permanent. However, the Employer sent a
letter to each striking employee stating that it was hiring permanent
replacement employees, and that the strikers must report to work immediately or
risk being permanently replaced.
At some point after being hired, each striker replacement
was asked to sign a form that stated that the replacement was accepting
employment as a "permanent replacement" but that he or she understood
that employment could be terminated at any time, with or without cause. The
Union later made an unconditional offer to return to work. The Employer replied
that it would only place the returning strikers on a preferential recall list
because it had hired permanent replacement employees.
An employer can establish that striker replacements are
permanent by showing that the replacements were regarded by both themselves and
the employer as having received their jobs on a permanent basis. Consolidated
Delivery & Logistics, 337 NLRB No. 81, slip op at 3-4 (2002). Where the
replacements' status is ambiguous, e.g., the employer gives contradictory
signals, the replacements are considered temporary. Harvey Manufacturing,
309 NLRB 465 (1992).
In Target Rock, the replacements were told they were
"permanent, at-will employees unless the NLRB considers you otherwise, or a
settlement with the Union alters your status to temporary replacement." The
Board found that the replacements were temporary because the employer's use of
the term "permanent" did not overcome the ambiguity created by the
employer's other characterization of their employment as "at-will". In
a concurrence, Member Higgins agreed that the totality of the evidence supported
a finding that the replacement employees were temporary. Higgins noted that the
ad for striker replacements stated that these positions could lead to
permanent full time status; the employer told the union that the replacements
were temporary; and the employer repeatedly stated to the union and to the
employees that it would discharge the replacements if the strikers offered to
return. Higgins disagreed with the Board majority conclusion that the
replacements' "at-will" status indicated that they were temporary.
Rather, Higgins argued that the term "permanent replacements," in the
context of labor law, connotes only an intention to retain the replacements
after strikers offer to return, and does not indicate a binding, unconditional
promise to give up the employer's at-will employment rights.
In our case, the replacements signed the Employer's form
signed stating that they were permanent; the Employer's letter to striking
employees stated that it was hiring permanent replacements; and there were no
statements, such as in job ads or applications, that contradicted the message of
permanent status. Apart from the "at-will" language in the replacement
form, the Employer and the replacements had a clear, mutual understanding that
the replacements were permanent. However, because of the "at will"
language in the replacement form, we decided to issue complaint and argue that
the replacements were temporary under the rationale of Target Rock.
We also decided to argue to the Board, consistent with the
concurrence in Target Rock, that "at will" language merely
serves as a reminder to employees of the employer's already existing right under
state law to terminate them with or without cause, and does not create an
ambiguity about their permanent status. We therefore argued that the Board
should overrule Target Rock to the extent it holds that a statement of
"at will" employment can, by itself, demonstrate non-permanent status,
and find that the Employer's refusal to reinstate the returning strikers was
EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH
Withdrawing Recognition Based Upon
We decided here that a successor Employer lawfully refused
to recognize the incumbent Union based on an antiunion petition that had been
signed by a majority of the predecessor's employees before the Employer had
hired them and began operations.
The predecessor had a long-standing bargaining
relationship with the Union. After the predecessor announced the sale of its
business to the Employer, rumors began circulating that the Employer was
antiunion and might hire less than a majority of the predecessor's employees in
avoid a bargaining obligation with the Union. These rumors had not been started
by the Employer.
The Employer sent a letter to the employees stating that
it was accepting employment applications from them, but was also running an ad
for applicants and considering applicants from its other locations. All the
predecessor employees applied for positions with the Employer. Some of the
predecessor employees then began circulating an antiunion petition stating:
We, the undersigned, have voted to voluntarily leave the
[Union] on the understanding that we will be considered for employment by [the
The petition eventually was signed by a majority of the
predecessor employees. The following week, the Employer announced that it had
hired a majority of these employees. When the Union then requested recognition,
the Employer refused citing the antiunion petition.
We decided that the Employer lawfully refused to recognize
the Union because we had objective facts to show that the Union actually had
lost majority support.
Under Levitz Furniture Company, 333 NLRB No. 105
(2001) an employer who withdraws recognition from an incumbent union must show
that the union suffered an actual loss of majority support. The Board recently
held that the rule in Levitz is applicable to a successor. See MV
Transportation, 337 NLRB No. 129, (2002), overruling St. Elizabeth Manor,
329 NLRB 341 (1999). Therefore, the successor Employer in our case was free to
assert that the Union had lost its majority status.
The Employer's evidence of a loss of majority consisted of
the language in the antiunion petition, and the context in which it was signed.
This evidence indicated that employees signed the petition in order to increase
their chances of obtaining employment with the Employer. We decided that the
evidence was sufficient to show a loss of majority.
We first decided that the employees' motives for
repudiating the Union were immaterial. The Employer had not started nor spread
the rumors that a repudiation of the Union would increase the employees' chances
of hire by the Employer. We then decided that it was irrelevant that the
language of the petition did not specify, in literal terms, that employees no
longer desired Union representation. Proof of loss of majority support does not
require any particular words so long as the basic thrust of the group message is
the repudiation of the union as bargaining representative.
We noted that the Board has found that petitions with
similar language did not show an unequivocal intent to repudiate the union. See,
e.g., Vic Koenig Chevrolet, 321 NLRB 1255, 1260 (1996), enf. denied in
relevant part 126 F.3d 947 (7th Cir. 1997), where an employee ballot asking
"[d]o you wish to remain in the Union?" was found not sufficient to
show a "good-faith doubt" of the union's majority status. However,
cases such as this were decided under pre-Levitz Board law, which evaluated
withdrawals of recognition based on the employer's "good-faith doubt."
The Board's decision in Levitz requires that a union's representative status
should be resolved by evaluating all objective facts concerning its majority
support. Based upon all the evidence in our case, the Union had in fact lost its
majority status. We therefore decided that the Employer had lawfully withdrawn
Successor Employer After Bankruptcy
In another case, we decided that the successor Employer
lawfully changed terms and conditions of employment after taking over a nursing
home operated by a predecessor employer who had filed for Chapter 11 bankruptcy.
On December 31, 2001, the predecessor and the successor
Employer entered into an agreement to transfer the nursing home to the Employer
upon approval of the bankruptcy court. The transfer agreement provided that the
Employer would manage the facility pending approval of the transfer, but that
the predecessor would remain the employer of the employees during this interim
period. The transfer agreement also provided that the predecessor would ask the
bankruptcy court to reject its collective-bargaining agreement with the Union.
The Employer took over management of the nursing home on
December 31, and operated it under the predecessor employer's state license
until it obtained its own license approximately one year later. The Employer
commenced operations without any changes in terms and conditions of employment.
However, prior to approval of the transfer agreement by the bankruptcy court,
the Employer informed the Union that it would not assume the
collective-bargaining agreement and that it planned to subcontract out all
ancillary work. The Employer also stated that it would be making changes to the
terms and conditions of employment when it hired employees.
When the bankruptcy court finally approved the transfer,
the Employer subcontracted out the ancillary work and required the remaining
bargaining unit employees to submit job applications for their positions. The
Employer also informed employees of certain changes in their conditions of
employment. The Employer eventually hired a majority of its employees from the
predecessor's workforce, under the new terms and conditions of employment, and
recognized the Union as their representative. We decided that the Employer had
acted lawfully in instituting its own terms of employment.
No one disputed that the successor employer was required
to bargain with the Union as a Burns successor. NLRB v. Burns, 406
U.S. 272 (1972). However, we decided that the Employer did not become a Burns
successor until the bankruptcy court approved the transfer of operations and the
successor became an employer of the bargaining unit employees in its own right.
In reaching this conclusion, we decided that our case was distinguishable from
the Board decisions in Specialty Envelope, Co., 321 NLRB 828 (1996), enfd.
in part, revd. in part sub nom. Peters v. N.L.R.B., 153 F.3d 289 (6th
Cir. 1998), and Golden Cross Health Care, 314 NLRB 1201 (1994), review
denied, 87 F.3d 1318 (9th Cir. 1996).
In Specialty Envelope, the Board held that a court
appointed receiver became a Burns successor on the same day it took over
operations of a company with the intent to purchase it. However, unlike the
receiver in Specialty Envelope, the successor Employer here did not have
court approval at the time it took over the facility. The Employer was simply
acting as a manager pending approval of the transfer agreement by the bankruptcy
court. In Golden Cross, the new owner had executed agreements to lease
and operate a nursing home contingent on acquiring the necessary license. The
Board held that the new owner became a Burns successor prior to receiving
its license because it effectively managed and controlled the operations during
the interim period. However, Golden Cross did not involve a bankruptcy
proceeding. And in that case, the new owner had at least a "respectable
certainty" that it would secure the necessary license. In our case, the
Employer did not have a "respectable certainty" that the bankruptcy
court would approve the transfer of the nursing home. We therefore decided that,
under the special circumstances of this bankruptcy where the predecessor is
unable to operate the business and the successor employer managed the facility
on its behalf, the Employer did not become a Burns successor until the
bankruptcy court approved the transfer agreement.
We then decided that the Employer was free to set initial
terms and conditions of employment when it finally became a Burns
successor after the bankruptcy court had approved the transfer. The Employer
informed the union that it was not assuming the collective-bargaining agreement
and that it intended to subcontract out certain bargaining unit work. The
Employer also informed the employees of new terms and conditions of employment
and had required them to fill out job applications. In these circumstances, the
successor Employer could establish the new terms and conditions of employment.
Withdrawal of Recognition
During Long Term Bargaining Agreement
In this case, we decided that the Employer unlawfully
withdrew recognition from the Union during the fourth year of the parties'
five-year contract, despite evidence that the Union had lost majority support.
The Employer and the Union were parties to a
collective-bargaining agreement effective from January 31, 1999 through January
31, 2004. On February 4, 2002, during the fourth year of the agreement, an
employee filed a decertification petition seeking a Board election. The petition
was supported by statements signed by a majority of employees. The statements
read stated: "I do not want [the Union] to continue to represent me as my
collective bargaining agent with my employer." Based on these employee
signed statements, the Employer withdrew recognition.
This case involved an issue of first impression: an
employer's withdrawal of recognition during a long term contract. We decided
that, when a contract is for a term longer than three years, the contract bars
an employer withdrawal of recognition even after its third year.
The Board has held that a union's majority status cannot
be questioned during the life of a three-year contract. General Cable Corp.,
139 NLRB 1123 (1962). The Board has also held that a longer term contract acts
as a bar to an election petition filed by either the employer or by the
incumbent union during its entire term. Montgomery Ward & Co., 137
NLRB 346, 347 (1962). However, a long term contract does not bar an election
petition filed by either an employee or a rival union after the third year.
In Montgomery Ward & Co., the Board explained
that the sole reason for the allowing disruption of a longer term contractual
relationship would to give effect to the employees' right to freedom of choice.
Therefore, at the end of the third year of a long term contract, the Board will
conduct an election only if either the employees themselves or a rival union
files a petition. The Board will not permit the employer or incumbent union to
take advantage of contract benefits and obligations with the knowledge that they
also may negate those contractual benefits and obligations by filing an election
We decided that, since the Board would not allow an
employer to file an election petition here, after the third year of the long
term contract, it would not be reasonable to allow the Employer to unilaterally
withdraw recognition at that time. As the Board explained in Montgomery Ward
& Co., the sole reason for allowing possible disruption of a contractual
relationship is to give effect to the employees' right to freedom of choice.
Here, the appropriate way to give affect to that employee right was to have an
election pursuant to the employees' decertification petition. Even though the
Employer had evidence that the Union had lost majority support, we decided that
the Employer violated the Act when it unilaterally withdrew recognition in the
fourth year of the parties' five-year contract.
The normal remedy in a withdrawal of recognition case is a
bargaining order, which would prevent any election for some period of time. See Caterair
International, 322 NLRB 64 (1996). Our case involved a pending
decertification petition signed by a majority of the employees. We therefore
decided that the appropriate remedy in this case would be a simple cease and
desist order. Such an order would not delay the processing of the
decertification petition, which would provide the fairest resolution of the
Union's majority status.
Information Related to Pending Charge
In this case, we decided that the Employer lawfully
refused to supply the Union with requested information concerning the Employer's
relationship with another company, because the information was closely related
to a pending unfair labor practice charge concerning that relationship.
The Employer notified employees and the Union of a plan to
transfer to a management company all Employer operations. The Employer also
stated that the management company would assume the Employer's bargaining
agreement obligations. The Union filed a grievance and also requested
information to determine whether the management company constituted a successor,
alter-ego, or a joint employer with the Employer.
The requested information included: (1) the names, ages,
addresses, phone numbers, job classifications, job descriptions and work hours
of all employees; and (2) information relating to the relationship between the
Employer and the management company. The Union then filed an unfair labor
practice charge alleging that the Employer had unlawfully contracted out
bargaining unit work to the management company. The Employer refused to provide
any of the requested information stating that all inquiries regarding labor
relations matters should be directed to the management company.
We noted that the Union's request for employee names,
ages, addresses, work hours, telephone numbers, job classifications and job
descriptions involved information which was presumptively relevant and therefore
must be furnished, upon request. See, e.g., V&S Schuler Engineering,
332 NLRB No. 118 slip. p. at 1 (2000); Curtis-Wright Corp., 145 NLRB 152
(1963), enfd. 347 F.2d 61 (3rd Cir. 1965). The Union made its information
request for this presumptively relevant information before the Employer had
transferred the employees to the management company. Since the Employer had a
bargaining relationship with the Union at that time, the Employer could not
discharge its obligation to furnish that information by merely referring the
Union to the management company.
However, we decided that the Employer had no obligation to
furnish the other information, relating to the relationship between the Employer
and the management company, because it was closely related to a pending unfair
labor practice charge. Pepsi-Cola Bottling Company, 315 NLRB 882 (1994),
enfd. in part on other grounds, 96 F.3d 1439 (4th Cir. 1996). The Board's
procedures do not provide for pre-trial discovery. See, e.g., Union-Tribune
Publishing, 307 NLRB 25 (1992), enfd. on other grounds, 1 F.3d 486 (7th Cir.
1993). The information concerning the relationship between the two companies was
intended to help the Union establish that the Employer and the management
company might be alter-egos or joint employers, in support of the Union's
contract repudiation unfair labor practice charge. We therefore decided that the
Employer lawfully refused to supply this information.
Inflated Rat as "Signal
In another case, we decided that the Union's conduct of
deploying an inflated rat surrounded by individuals wearing Union jackets
amounted to unlawful "signal picketing."
The Employer was a general contractor at two construction
sites where other contractors, union and non-union, were also working. A Union
agent informed the Employer that he would "take [the Employer] down if it
doesn't go union." Immediately thereafter, large inflated rats accompanied
by 30 individuals wearing Union jackets arrived at both job sites. The Employer
was not specifically identified by this Union demonstration until more than 20
days later, when the Union also began distributing handbills that identified the
While the inflated rats were present, some supplier
drivers refused to make deliveries. One supplier told the Employer that when his
drivers see rats, they understand that there is a "job action" and
that they cannot cross the "picket line." In addition, employees of
some on site subcontractors left the sites or refused to go onto the sites
because they would not cross the "picket line." We decided that the
Union's conduct amounted to unlawful "signal picketing" in violation
of Section 8(b)(4)(i).
Several neutral employees had stated that they considered
the mere presence of an inflatable rat to symbolize that a job action or labor
dispute was present at the site. We also noted that the "rat" is a
well-known symbol associated with labor disputes, and that "rat" is a
synonym for the word "scab." See Occidental Chemical, 294 NLRB
623 (1989); Marquis Elevator Company, Inc., 217 NLRB 461 n. 2 (1975).
This widespread understanding is also reflected in the New Shorter Oxford
English Dictionary 2480 (4th ed. 1993), which defines "rat" as a
"worker who refuses to join a strike or who takes a striker's place."
Modern news sources also report use of the rat as a well-known symbol of labor
unrest. See Ashley McCall, Strike at Dynamic Metal Ongoing, SOUTH BEND
TRIBUNE, IND., Dec. 2, 2002, 2002 WL 104377275 ("40 or so members of Local
509 erected a symbol of that [labor dispute] frustration by inflating a 15-foot
plastic rat in front of the Dynamic Metal building"); Romy Varghese, Information
Picket Halts Work on Project, THE RECORD, BERGEN COUNTY, NJ, June 13, 2002,
2002 WL 4661545 (Carpenters, Local 124 used the "rat as a symbol of protest
..."); and Mark Harrington, A Show of Support in Patchogue, Backing
Pledged by Legislator, Labor Federation, NEWSDAY, INC., Aug. 16, 2000, at
A-55, 2000 WL 10028693 ("[CWA, Local 1108] used a giant inflatable rat as
the symbol of a company they accuse of wanting to transfer jobs to remote,
low-wage locations and non-union contractors"). Finally, television media
has used the rat as a symbol of labor unrest in episodes depicting labor
disputes. See e.g., The Sopranos: Calling All Cars (HBO TELEVISION DRAMA
SERIES, SEASON FOUR 2002).
Since an inflatable rat is a symbol of a labor dispute, we
decided that the Union's display of the rat near the entrance to the work site
was the functional equivalent of picketing, i.e., it sent signals to those who
approached the entrance that some type of labor dispute was occurring and that
action on their part was desired. The Board has long used the doctrine of
"signal picketing" to describe union conduct that did not involve
traditional picketing but could be characterized as "picketing"
because it evokes the same response as a traditional picket line. The Board has
found "signal picketing" where union business agents were stationed
near a jobsite site entrance, or where unaccompanied union placards were placed
near an entrance. See, e.g., United Mine Workers of America, District 2 (Jeddo
Coal Co.), 334 NLRB No. 86 (2001); Sheet Metal Workers, Local 19 (Delcard
Associates, Inc.), 316 NLRB 426, 437-438 (1995) enfd. denied on other
grounds, 154 F.3d 137 (3rd Cir. 1998). The inflatable rat in this case served
the same function. Neutral employees would assume that a picket line existed
because of the huge inflatable rat surrounded by Union members and would refuse
to enter the site or make deliveries.
Application of Joint Employer's
In this case, we decided that the Respondent's compliance
with the Board's Order in Gourmet Award Foods, Northeast, 336 NLRB No. 77
(2001), did not require the Respondent to apply the economic provisions of its
bargaining agreement to joint employees supplied to Respondent by supplier
In its decision, the Board held that Respondent must apply
its bargaining agreement to the supplied employees "only as to the working
conditions the Respondent controls." Slip op. at 4. The Board noted that
the Judge had only found that "the supplier employers generally controlled
other areas [than Respondent], such as pay" and did not decide whether
either employer "controlled any specific aspects of an area generally
controlled by the other employer." Slip op. at 3-4. A Board majority
therefore left to a later compliance determination "issues regarding the
Respondent's control over specific working conditions governed by particular
Member Liebman made clear that she reluctantly joined
Member Truesdale to form the majority opinion in this case, applying the
contract to conditions which Respondent controlled, because the dissenting
opinion argued that the contract should not apply at all. Member Liebman's view,
which did not prevail, was that the Respondent should apply its entire
bargaining agreement to the supplied employees because the arrangement between
Respondent and the suppliers, giving Respondent control over some employment
conditions and the suppliers control over others, was voluntary.
We conducted a subsequent investigation into Respondent's
control over supplied employee working conditions. We determined that, when the
Respondent needed additional workers, it simply called supplier agencies,
specified the number of employees it needed, and was quoted an hourly rate.
Respondent did not discuss different economic "packages" and did not
discuss supplier agency bargaining agreements rates. In sum, Respondent had no
knowledge of, or input into, the economic employment terms of supplied
employees. We therefore decided that Respondent was not required to apply the
wage and benefit terms in its bargaining agreement to the supplied employees.
We recognized that Respondent could have asserted control
over the supplied employees. For example, Respondent could have chosen to pay
supplied employees the difference between what they were paid and what the
Respondent's contract paid. However, the possibility of such a voluntary
financial arrangement would not have been the form of specific control that the
Board majority required for application of Respondent's bargaining agreement.
Instead, this type of "voluntary" or potential employer control is
precisely what Member Liebman viewed as sufficient for contract application. Her
view was not the majority decision; she recognized her disagreement with Member
Truesdale on this point. We therefore decided that even such a voluntary
financial arrangement would not require application of the economic terms of the
Special Remedies for Undocumented
We decided to seek special notice and access remedies
because the Employer's conduct had destroyed the Union's ability to participate
in a fair election involving employees who were not documented to work in the
Union A began organizing the Employer's 10 employees. To
prevent Union A from succeeding, the Employer entered into a
collective-bargaining agreement with Union B, even though Union B did not have
majority support. The Employer announced that the employees were now all members
of Union B and would be fired if they joined another union. The Employer also
discriminatorily discharged two Union A supporters. Although both of these
employees were undocumented workers, the Employer had not asked them to provide
work authorization documentation when it initially had hired them. After the
Employer terminated these employees, no other employees would speak to Union A.
We first decided to seek only conditional reinstatement
for the discharged employees under A.P.R.A. Fuel Oil Buyers Group, 320
NLRB 408 (1995), enfd. 134 F.3d 50 (2d Cir. 1997). In A.P.R.A., the Board
ordered an employer, who had knowingly hired undocumented workers, to offer them
reinstatement conditioned on their satisfaction of immigration law verification
procedure. The Supreme Court's decision in Hoffman Plastic Compounds, 122
S.Ct. 1275 (2002) does not prohibit this remedy of conditional reinstatement
remedy. In Hoffman, an employer hired a worker without knowledge of his
immigration status. The Court held that the worker was not entitled to back pay
or reinstatement. Hoffman did not involve an employer who knowingly hired
undocumented workers. The Court therefore did not even address conditional
reinstatement for that kind of discriminatee.
We also decided to seek a notice reading remedy in this
case. See General Counsel Memorandum 02-06, "Procedures and Remedies for
Discriminatees Who May be Undocumented Aliens after Hoffman Plastic
Compounds, Inc.," at 5 (July 19, 2002). Notice reading for undocumented
workers was appropriate because the Board's ability to reassure employees that
their Section 7 rights will be protected is greatly limited where the Board can
not obtain reinstatement. Further, where an employer's workforce includes
employees with limited English-language abilities and little familiarity with
American labor law, a notice reading remedy helps ensure that these employees
learn about their Section 7 rights. We also decided to seek an order requiring
the Employer to provide the Union, upon request, with names and addresses of
unit employees. This remedy was designed to address the Section 8(a)(2)
violations which arose when the Employer denied Union A access to organize its
employees. Finally, we decided to not seek additional special access remedies
even though the Employer had committed severe and pervasive unfair labor
practices. The Employer was not a recidivist, and the unfair labor practices,
although severe, were relatively few in number.
Section 10(j) Authorizations
During the five month period from September 1, 2002
through January 31, 2003, the Board authorized a total of 9 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
One case was somewhat unusual and therefore warrants
The Region had issued a Section 8(a)(1) and (3) complaint
against the Employer, which was a manufacturer and a defense contractor. The
complaint alleged that two closely-related businesses constituted a "single
employer" under the Act. The Union was engaged in an initial organizing
campaign among the Employer's 420 production, maintenance, shipping, and
receiving employees. The Union had filed a representation petition with the
Board. The Employer responded by allegedly engaging in serious unfair labor
practices, including threats of discharge and plant closure, the discriminatory
discharge of three Union supporters, and the imposition of more onerous working
conditions upon employees. To protest the Employer's asserted violations, the
Union commenced an alleged unfair labor practice strike that was supported by a
substantial part of the unit employees. The Employer hired permanent replacement
workers for the strikers' jobs. The Union informed the Region that it was
prepared to proceed to a Board election if the Board could obtain appropriate
We concluded that 10(j) relief was warranted in this case
both to protect the Union's status in this organizational campaign and to
restore "laboratory conditions" in this unit to permit the holding of
a fair election. We directed the Region to seek, inter alia, a broad cease and
desist order and an order requiring the Employer to offer interim reinstatement
to the three discharged employees and to the strikers upon their unconditional
offer to return to work, displacing if necessary the permanent replacements.
The district court granted the requested injunctive relief
in substantial part. The court concluded that a "[f]]ailure to impose an
injunction will likely lead to dissipation of union support over the time needed
for the Board to complete its administrative process." The court also
rejected the Employer's jurisdictional defense that the Board's temporary
delegation of Section 10(j) authority to the General Counsel was improper.
The 9 authorized cases fell within the following
categories as described in General Counsel Memoranda 01-03, 98-10, 89-4, 84-7
||Number of Cases In Category
|1. Interference with organizational campaign (no
|2. Interference with organizational campaign
||Case is pending.
|3. Subcontracting or other change to avoid
||- - -
|4. Withdrawal of recognition from incumbent
||Case was withdrawn based upon changed
|5. Undermining of bargaining representative
||One case settled after petition; one case is
|6. Minority union recognition
||Case is pending.
|7. Successor refusal to recognize and bargain
|8. Conduct during bargaining negotiations
||Case was withdrawn based upon changed
|9. Mass picketing and violence
||- - -
|10. Notice requirements for strikes and picketing
(8(d) and 8(g))
||- - -
|11. Refusal to permit protected activity on
||- - -
|12. Union coercion to achieve unlawful object
||- - -
|13. Interference with access to Board processes
||- - -
|14. Segregating assets
||- - -
1 Of these cases, the General Counsel directly
authorized four (4) Section 10(j) proceedings under the December 21, 2001
temporary delegation from the Board of "full authority on all court
litigation matters." See 66 Fed. Reg. 65,998-02, 2001 WL 1635725 (2001).
2 See also NLRB Section 10(j) Manual, Appendix
A, "Training Monograph No. 7."
3 This case was directly authorized by the
General Counsel under the 2001 delegation. See n. 1, supra.