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INDUSTRIAL RELATIONS RESEARCH ASSOCIATION
51ST ANNUAL MEETING
LABOR AND EMPLOYMENT LAW SECTION
ROUNDTABLE
Delivered by:
John C. Truesdale
Chairman
National Labor Relations Board
January 4, 1999
Grand Hyatt New York
New York, New York

NATIONAL LABOR RELATIONS BOARD

WASHINGTON, D.C.   20570

FOR IMMEDIATE RELEASE (R-2317)
Monday, January 4, 1999 202/273-1991
  www.nlrb.gov

INDUSTRIAL RELATIONS RESEARCH ASSOCIATION
51ST ANNUAL MEETING

LABOR AND EMPLOYMENT LAW SECTION
ROUNDTABLE

Delivered by:

John C. Truesdale
Chairman
National Labor Relations Board

January 4, 1999
Grand Hyatt New York
New York, New York


The views expressed are those of Chairman Truesdale,
and do not necessarily reflect those of the Board or other Members



Good morning. It is an honor and privilege to be here in New York to address the Labor and Employment Law Section of the Industrial Relations Research Association at its 51st annual meeting. This is my first speech as Chairman of the National Labor Relations Board and I am glad to have the opportunity to give it at the annual meeting of the IRRA, an organization which I have long been associated with and supported.

GOALS AND PHILOSOPHY AS CHAIRMAN

As I indicated at my recent swearing in ceremony in Washington, if I have a "secret agenda" as Chairman, it is simply to get the cases out. That, after all, is the primary function of the Board. I have always viewed the Board as kind of an administrative court, with the Board Members being like "judges," and having a professional rather than a political mission. The Board's purpose is to decide cases and otherwise implement the national labor policy within the parameters set by Congress in the statute. With few exceptions, the Board has historically resisted or shied away from becoming involved in the political process by commenting on legislation, and for good reason in my view. Like the proverbial nose under the tent, it seems to me that once the Board starts getting involved in the legislative process its status as an independent decider of labor disputes would very soon be lost altogether. During my tenure as Chairman you can be sure that I will not be looking for opportunities to comment on legislation or making policy pronouncements on what the law should be, rather than what it is.

RECENT DECISIONS

In keeping with my philosophy that the Board's job is to decide cases, it was suggested that I talk a little about recent decisions by the Board and pending cases that raise issues of interest. Obviously, since I have only been back at the Board a few weeks now, I did not participate in any of the recent significant decisions issued by the Board in the last several months. However, I am glad to tell you about a few of them that were issued by my fellow Board Members.

Historically, there has been a "push" to get old or particularly difficult cases out near the end of a Board Member's term, and a similar push occurred near the end of former-Chairman Gould's term in late August. The Board issued a number of decisions around that time which addressed several significant issues. There isn't time to go into all of them, but I will mention a few which might be of particular interest.

Perhaps the most famous of the cases was Detroit Newspapers, 326 NLRB No. 64, which issued August 27. In that case, the Board unanimously found that the Respondent Newspapers' unfair labor practices had caused the June 1995 strike and that the strikers were therefore ULP strikers who could not be permanently replaced. The Board unanimously agreed with the ALJ that the Respondent had violated 8(a)(5) by, among other things, unilaterally implementing its proposals for merit pay and TV assignments and failing to provide certain information. In agreement with the ALJ, the Board found that the Respondent had engaged in bad faith bargaining over its proposals by withholding details about the proposals, proposing dates for bargaining when it knew the Union was not available, misrepresenting the Union's position on the proposals to employees, and providing more information about the proposals to employees than to the Union.

However, the Board majority (Member Liebman dissenting) reversed the ALJ's finding that the Respondent had also violated 8(a)(5) by failing to adhere to an agreement to engage in joint-Union bargaining about economic issues common to all units. The majority found that there was no unequivocal agreement by all parties prior to the start of negotiations to be bound by the results of joint bargaining and the Respondent had departed from the ground rules in a good faith effort to accelerate, not delay, the bargaining process.

Finally, the Board severed and reserved for separate consideration the issue of whether the Respondent had unlawfully failed to bargain about the terms and conditions of the striker replacements hired after the strike began. That issue is currently pending before the Board.

Another interesting, if less famous, case was Silver State Disposal Service, Inc., 326 NLRB No. 25, which issued August 19. In that case, the Board addressed the issue of whether a contractual no-strike clause waived the employees' right to strike in protest over the discharge of a fellow employee. The Board majority (Members Fox, Liebman and Brame) held that there was no waiver since the no-strike clause only expressly prohibited the Union from calling, encouraging or condoning a strike, and the employees' strike was spontaneous and was not authorized or sanctioned by the Union. Chairman Gould concurred and Member Hurtgen dissented.

Another interesting August "push" case was Farm Fresh, Inc., 326 NLRB No. 81, which issued August 27. In that case, which involved the access rights of Union organizers, a Board majority (Chairman Gould and Members Hurtgen and Brame) held that the Employer did not violate the Act by ejecting two nonemployee union organizers from its grocery store snack bar. The majority concluded that the Board's 1988 decision in Montgomery Ward (288 NLRB 126) regarding the rights of nonemployee organizers to solicit in an employer's public food service establishment located on its premises had been effectively overruled by the Supreme Court's 1992 decision in Lechmere (502 U.S. 527). Applying Lechmere, the majority opinion affirmed the judge's finding of no violation given that there was no showing that the store employees were beyond the reach of the Union's organizational message, the Union was free to solicit employees in the store's parking lot beyond the 50-foot boundaries set by the Employer's no-solicitation rule, and there was no evidence the Employer enforced its rule in a disparate fashion. Members Fox and Liebman concurred in the result, but dissented from the majority's conclusion that Lechmere effectively overruled Montgomery Ward.

The Board addressed the issue of disparate enforcement of no-solicitation or distribution rules in another August case, Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani Rehabilitation and Nursing Center, 326 NRLB No. 37. In that case, which issued August 26, the Board majority (Members Fox, Liebman, Hurtgen and Brame; Chairman Gould dissenting) held in separate opinions that the Employer did not engage in objectionable conduct by prohibiting employees from distributing literature in work areas while at the same time permitting its supervisors to distribute anti-union literature in such areas. The case is particularly interesting because, although the majority agreed on the result, the Board Members issued three separate opinions discussing the proper standard to apply in evaluating such conduct under the Supreme Court's decision in Nutone (357 U.S. 357) and subsequent cases. The separate opinions are relatively lengthy and it would take far too long for me to adequately summarize each opinion for you here. But I commend them to your reading.

Finally, another interesting case -- which was issued by a panel rather than the full Board -- was Telescope Casual Furniture, 326 NLRB No. 60. In that case, which issued August 27, a panel majority (Chairman Gould and Member Hurtgen) affirmed an ALJ's finding that the employer did not violate Sec. 8(a)(5) of the Act by implementing an alternative bargaining proposal that was discussed by the parties during negotiations but was different and more regressive than its final proposal which was rejected by the Union. The ALJ found that the alternative proposal was "reasonably comprehended within" its pre-impasse proposals, and that the Employer's implementation of the alternative proposal was therefore lawful under the standards set forth in Taft Broadcasting, 163 NLRB 474, enfd. 395 F.2d 622 (D.C. Cir. 1968). The majority affirmed, noting that although the alternative proposal had been used to pressure the Union to agree to the final proposal, such pressure or hard bargaining is not unlawful. Member Liebman dissented.

PENDING CASES/ISSUES

Unfortunately, of course, the Board was not able to get all of the hard or difficult cases out. Many significant cases remain to be decided -- a few of which I have discovered -- to my great dismay -- I actually reviewed or voted on during my last term as a Board Member between late 1994 and early 1996. One of my primary goals will be to get those old cases out.

Again, there isn't time to summarize all of the major cases or issues pending before the Board, but I thought I would summarize a few of the more interesting ones for you.

In two pending cases, Chelsea Industries (7-CA-368465) and Levitz (20-CA-26596), the General Counsel has asked the Board to overrule the Board's 1951 decision in Celanese (95 NLRB 664) and prohibit employers from withdrawing recognition from a certified union based on employee petitions. Under the GC's proposal, an employer would only be able to withdraw recognition from a certified union based on a secret ballot election in which a majority of employees rejected continued union representation. In April 1998, the Board requested supplemental briefing on this issue and related issues which might be affected by a change in Board policy regarding withdrawal of recognition based on decertification petitions.

Another significant issue before the Board involves the photographing or videotaping of employees. The Board heard oral argument on two such cases in August of 1996, and it was still struggling with those cases when I returned last month. In one of the cases, Flamingo Hilton-Reno (32-CA-14378), the issue is whether an employer may solicit employees' consent to appear in its antiunion campaign videotape. The second case, Randall Warehouse of Arizona (28-RC-5274), involves Union photographing of employees. The Union in that case photographed employees handing out Union literature to fellow employees outside the employer's facility. The case raises the issue of whether the same standard should apply to union photographing as applies to employer photographing.

The Board is also considering a number of cases concerning the supervisory status of certain workers. In KGTV (21-RC-19478) and KGW-TV (36-RC-5583), the issue is whether certain producers, directors and editors at TV stations are statutory supervisors. And in one of the oldest cases at the Board, Mississippi Power and Light (15-UC-132), the Board is considering the issue of whether the power company's system dispatchers are statutory supervisors.

The Board is also still wrestling with the supervisory status of charge nurses following the Supreme Court's 1994 decision in Health Care and Retirement Corp. (511 U.S. 571). The Board's post-HCR decisions in this area have met with mixed reaction in the courts. The 8th, 9th, and D.C. Circuits have upheld the Board's decisions in this area, while the 3rd, 4th, and 6th Circuits have rejected Board decisions finding charge nurses not to be supervisors. The 7th Circuit has also rejected a Board decision in this area, but the court has recently agreed to reconsider that decision en banc.

In two election cases, Jeffboat (9-UC-406) and M.B. Sturgis (14-RC-11572), the Board is also considering whether or under what circumstances employees that are jointly employed by an employer and a temporary employment agency may be included in a unit with the employer's non-temp employees.

We also have a number of interesting cases pending which raise issues about whether certain individuals are covered by the Act. In Yale University (34-CA-7347), an issue is raised regarding whether graduate students are employees within the meaning of the Act. And in Boston Medical Center (1-RC-20574), the issue is whether interns and residents are statutory employees.

There are also still a number of so-called Beck or union-dues cases pending before the Board which need to be decided. Although the Board has issued approximately 18 such decisions, about 20 more remain to be decided. These cases raise several significant issues, including whether certain types of expenditures, such as organizing expenses, may be charged to objecting employees and the type of verification procedure unions must use in providing financial information to employees who object to the use of their dues for non-representational purposes.

As you may know, a unanimous Supreme Court recently held in Marquez v. Screen Actors Guild (119 S.Ct. 292) that a union does not violate its duty of fair representation by negotiating a union security clause in its collective bargaining agreement which tracks the statutory language and states that employees must become "members" as a condition of employment without further explaining the limitations the Supreme Court placed on membership in General Motors and Beck. There are a number of cases pending before the Board raising similar issues and the Court's decision obviously will be considered in deciding those cases.

Finally, the Board is also considering a number of interesting issues arising in non-union settings. For example, in Polaroid Corporation (1-CA-29966), the Board is considering whether an employee focus group -- established by a nonunion employer -- is a labor organization within the meaning of Section 2(5) of the Act and whether the employer's involvement with the focus group violates 8(a)(2). The Respondent contends the focus group is not a labor organization because it is not representational and does not deal with the Employer. Interestingly, the record includes numerous videotapes of the focus group meetings, which were taken by the Employer and made available for viewing by its entire workforce.

Another interesting case in a non-union setting is Epilepsy Foundation of Northeast Ohio (28-CA-28169). In that case, the General Counsel has asked the Board to overrule Board precedent (E.I. Dupont, 289 NLRB 627 (1988)) and extend Weingarten rights to unrepresented employees. The GC is urging the Board to return to prior Board law (Materials Research Corp., 262 NLRB 1010 (1982)) and hold that unrepresented employees are entitled to have a co-worker present during investigatory interviews which the employee believes could result in disciplinary action.

As I indicated, I have only been back at the Board now a few weeks and have obviously not had the opportunity to review all of these cases in detail. However, I will be doing so in the coming weeks. In the meantime, I have begun participating in cases and the more routine cases are continuing to issue in an expeditious fashion.

Finally, I want to say how pleased I am to join my fellow Board Members -- Sarah Fox, Wilma Liebman, Peter Hurtgen, and Bob Brame -- in their efforts to attack the backlog. When I arrived back at the Board, I found my fellow Board Members hard at work addressing the pending cases and reviewing our decisional processes in general to see how they might be improved to expedite the issuance of decisions in the future. I look forward to working with them in this effort to get the Board's caseload on a current basis as would befit an efficient professional adjudicatory organization.

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