INDUSTRIAL RELATIONS RESEARCH
51ST ANNUAL MEETING
LABOR AND EMPLOYMENT LAW SECTION
John C. Truesdale
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
|Monday, January 4, 1999
51ST ANNUAL MEETING
LABOR AND EMPLOYMENT LAW SECTION
John C. Truesdale
National Labor Relations Board
January 4, 1999
Grand Hyatt New York
New York, New York
The views expressed are those of Chairman
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
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.
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
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
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.
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
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
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.