NN&V Exclusive
In Part I of Union-Friendly Changes By NRLB Will Affect Your Business, Smith explained micro bargaining units and new regulations regarding notices of the right to unionize. Below are three other changes businesses must be aware of for 2012. – Ed.
(Rebecca Smith) – 3. The NLRB’s decision regarding the Jurys Boston Hotel was, to me, one that had a huge precedent , but was overlooked by most. This case was brought against the employer by the union and was based on a the employer’s Handbook Policies.
In Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011), the NLRB concluded that rules in an employee handbook governing solicitation, loitering and the wearing of emblems, badges and buttons were “objectionable conduct” sufficient to set aside the results of a decertification election—even where there was no evidence that those rules were enforced against employees or actually chilled union activity.
The handbook contained rules governing solicitation, loitering and the wearing of emblems, badges and buttons. The solicitation rule prohibited solicitation and distribution on hotel property. The loitering rule subjected employees to discipline for being in unauthorized areas and/or loitering inside or around the hotel without permission or using guest facilities for personal use. A grooming standards policy prohibited employees from wearing emblems, badges or buttons with messages on them other than employer-issued nametags or official hotel pins. There was no evidence these rules were enforced before or during the election to prohibit protected union activity.
The practical impact of this decision is that employers must thoroughly scrutinize their employee handbooks. In other recent decisions, the Board has made it clear that it takes a very expansive view of what constitutes “protected, concerted activity.” Now, with the Jurys decision, the Board has shown that overbroad or ambiguous policies touching on NLRA issues can be used by unions to set aside elections. Attention to handbook policies now clearly is the ounce of prevention that will protect against the Board's later attempt to impose a pound of cure with a re-run election.
4. The NLRB encouraged card check in the Lammons ruling. The second major case decided by the Board as Ms. Liebman headed for the door is Lammons Gasket Company. There the Board overturned the earlier Bush-era decision “Dana Corp.” The Dana decision allowed employees to challenge their employer's voluntary recognition of a union. Under the Lammons ruling, employees now may not challenge a union's representative status for a “reasonable period” following an employer's lawful voluntary recognition.
Lammons strips employees of that option, by saying that once a bargaining relationship is established; it must be allowed to bear fruit. Accordingly, both the employees affected by that bargaining relationship and their employer are barred from challenging the union's representative status until a “reasonable period” of time has passed.
Just what is that “reasonable time period?” No less than 6 months.
And if the employer and a union enter into a labor agreement during that one-year bar, then, under the Board's contract-bar rules, the workers will be precluded from questioning the union's majority status for the life of that labor agreement, for a period of up to an additional three years. Most workers are unaware of these facts when they are asked or coerced into signing an authorization card. It is for that reason that the earlier Dana decision was rightly decided and why Lammons benefits no one but organized labor.
5. Most costly to employers is the NLRB’s decision to utilize Court Injunctions 10 (j).
Acting General Counsel Lafe Solomon has directed Regional Directors of the NLRB to seek a federal court injunction under Section 10(j) of the NLRA in all unfair labor practice cases involving a discharge occurring during a union organizing drive. Solomon also has directed Regional Directors to seek “additional remedies to remove the impact of the discharges as well as the other Section 8(a)(1) violations.” In other words, in addition to injunctive relief for charges involving terminations under Section 8(a)(3) of the NLRA, Solomon has seemingly instructed Regional Directors also to seek injunctive relief in garden variety 8(a)(1) cases arising during a union organizing campaign.
NLRB Regional Directors also have been directed to seek additional remedies in nip-in-the-bud cases, such as:
- requiring a “responsible management official” to read remedial notices to assembled groups of employees
- union access to the employer's bulletin boards
- providing names and addresses of employees to unions
- granting union access to non-work areas during employees' non-working time
- affording unions equal time and facilities to respond to any address made by the employer regarding the issues of unions and unionization; and
- allowing unions the right to deliver speeches to employees prior to any Board election.
With the expected increase in Section 10(j) injunctions during union organizing campaigns, employers should carefully evaluate existing training initiatives to ensure supervisors are up to date on NLRA compliance. Training should empower supervisors to communicate lawfully with employees regarding unions and unionization.
This is critically important given that even isolated alleged violations of Section 8(a)(1) very well may trigger requests for injunctive relief. Relatedly, a trend is beginning to emerge in which the Board is increasingly overturning union election losses based on extremely technical or questionable alleged violations.
The current Board is adopting a “shoot first, ask questions later” approach in protecting employee and union rights. It has been no secret that the current NLRB has a union bias and is flexing their muscle in interpreting labor law.
This was evident when they reinterpreted the NRA from “a majority of employees employed by railways and airlines” to a “majority of employees that voted” in the election.
Piedmontwas the first airline to fall to this new ruling. Every year a petition from a union had been filed and every yearPiedmontwon. Under the new interpretation,Piedmontlost the recent election.
The Boeing matter shows that the General Counsel believes that the Board's power to remedy potentially unlawful conduct is broad – going so far as to potentially prohibit employers from establishing new facilities in right to work states despite compelling business reasons.
Any employer will have to proceed with extra caution regarding employee relations and union organizing to ensure that it is not potentially stepping on an NLRB landmine.
