Erie Brush Manufacturing

Erie Brush & Manufacturing Corp., 357 NLRB No. 46 (Aug. 9, 2011), is a case involving a new bargaining relationship between an employer and a union. After a federal appeals court enforced the Board’s bargaining order, the employer and union engaged in bargaining. Later, the employer withdrew recognition based on an employee petition indicating a majority of employees no longer wished to be represented by the union. The key issue in the case is whether the employer unlawfully refused to bargain with the union and thus tainted the petition rendering the withdrawal of recognition unlawful.

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Millwrights Local 1827 (United Parcel Service)

As described by dissenting Member Hayes, Millwrights Local 1827 (United Parcel Service), 357 NLRB No. 44 (Aug 11, 2011), represents the final Board decision stemming from a series of complaints issued in 2003 and 2004. The facts of this case and the majority’s rationale are largely similar to the other bannering decisions issued in the last year, beginning with Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB No. 159 (Aug. 27, 2010), albeit in these cases the facts seem even more questionable, for example the bannering occurred as close as 8 feet from one neutral employer’s outdoor seating area, induced some customers to refuse to do business with the neutral employer, and involved more aggressive conduct by the protestors. Nevertheless, the Board majority of Chairman Liebman and Members Pearce and Becker dismissed the complaint and ruled the conduct did not constitute unlawful secondary activity.

In dissent, Member Hayes concluded that the majority had “resurrect[ed] the coercive secondary boycott as a permissible tactic in labor disputes” by reading the section 8(b)(4) so narrowly. As an example of the narrow reading and absurd result reached, Member Hayes recalled that in Eliason the Board found the bannering non-coercive in part because the union agents holding the banners were stationary, instead finding that

picketing could be established only by proof that the union agents both carried “picket signs” and engaged in “persistent patrolling.” Here, union agents held banners targeted at [a neutral employer] while other union agents engaged in patrolling by walking back and forth in front of a vehicle entrance used by customers in a “half-moon” pattern and stepping into the drive entrance as cars entered to induce customers to accept a flyer. This combined conduct was confrontational picketing in any commonly understood sense of those terms, yet the majority finds it lawful on the basis that that banner holders did not themselves walk back and forth or step into traffic while holding the banners. Unlike my colleagues, I cannot ascribe to Congress the intent to have 8(b)(4) liability turn on such distinctions any more than Congress could have intended to immunize secondary activity merely because the participants did not attach their signs to sticks.

Significance: As with the Board’s other recent bannering decisions, we are left to wonder what secondary activity will now be prohibited absent a smoking gun demonstrating that employees of the secondary employer refused to report to work as a result of the secondary activity.

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The Continental Group, Inc.

The Board’s holding in The Continental Group, Inc., 357 NLRB No. 39 (Aug. 11, 2011), is not particularly controversial or interesting. However, in this case, the Board reformulated the so-called Double Eagle rule—the analysis it will apply when an employer disciplines an employee under an overbroad policy. As described by the majority of Chairman Liebman and Member Becker, “[t]he Board has long adhered to and applied the principle that discipline imposed pursuant to an unlawfully overbroad rule ins unlawful … [Citing Double Eagle Hotel & Casino, 341 NLRB 112, 112 n.3 (2004) and other cases].” However, while the rule “has often been stated in absolute terms” the majority believed it appropriate to further articulate the rationale for the rule and its scope, setting limits on its application.

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Ace Car & Limousine Service, Inc.

Generally speaking, the contract-bar doctrine is a rule created by the Board to prevent consideration of an election petition during the first three years of a valid collective bargaining agreement. The Board has considered numerous cases examining whether unlawful provisions in collective bargaining agreements are sufficient to permit consideration of an election petition. For example, in 1961 the Board decided Paragon Products Corp., 134 NLRB 662, in which it determined that a “contract containing a union-security provision that clearly was unlawful on its face could not bar an election.”

In Ace Car & Limousine Service, Inc., 357 NLRB No. 43 (Aug. 8, 2011), a Board majority of Chairman Liebman and Member Hayes affirmed a Regional Director’s decision to process a decertification petition because the collective bargaining agreement between the union and the employer unlawfully required employees to pay “assessments” as a condition of employment. The Board has long held that a “union-security clause requiring the payment of ‘assessments’ as well as dues is unlawful because ‘assessments’ do not fall within the meaning of ‘periodic dues as used in Section 8(a)(3) of the Act.” Santa Fe Train Transportation Co., 139 NLRB 1513 (1962).

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Advice Rejects Four Facebook Cases

The Division of Advice issued four memoranda in June and July related to social media issues. In each case, Advice concluded that the employees in question did not engage in protected concerted activity and thus their conduct on Facebook was not within the jurisdiction of the NLRA.

In Rural Metro (Jun. 29, 2011), Advice considered an employee who made an extensive post related to her employer, a provider of emergency medical services, on the Facebook page of a U.S. Senator. In reviewing the facts, Advice noted that the employee did not discuss her Facebook comments with other employees and that there had been no employee meetings or attempts to initiate group action. The employee also did not take complaints to management and did not expect the U.S. Senator to take action, finding instead that “she was merely trying to make a public official aware of the state of emergency medical services in Indiana.” Finding no evidence of concerted activity, Advice concluded the employer’s discharge of the employee did not violate the Act.

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GC Declines Opportunity for Board Review of Proposed Deferral Standards

On January 20, 2011, Acting General Counsel Lafe Solomon issued Memorandum 11-05 concerning “deferral to Arbitral Awards and Grievance Settlements.” In that memo, the GC articulated proposed new standards for deferral in 8(a)(1) and 8(a)(3) cases that would require the party urging deferral to demonstrate (1) that the contract had the statutory right at issue incorporated into it or that the parties presented the statutory issue to the arbitrator, and (2) that the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If such a showing is made, then the GC argues that the Board should defer unless the award is clearly repugnant to the Act.

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GC Embraces Use of the Inflatable Rat

On May 26, 2011, the Board ruled that a union did not violate the Act in its use of a large inflatable rat as part of a demonstration in front of a neutral employer, a regional hospital, that was doing business with a non-union contractor. Sheet Metal Workers Local #15 (Brandon Regional Hospital), 356 NLRB No. 162.

Wasting no time, the General Counsel’s Division of Advice has now issued two memoranda directing regional offices to dismiss two charges regarding use of a large inflatable rat. On July 8, the Division of Advice issued a memorandum in Asbestos, Lead & Hazardous Waste Laborers’ Local 78 (Midway Jewish Center) involving placement of the large inflatable rat in front of Midway Jewish Center to protest Midway’s use of a general contractor that, in turn, retained a non-union subcontractor to perform asbestos abatement work. The union began handbilling, in the presence of the rat, about 15 feet from the employer’s only driveway entrance. The union hung a sign on the rat stating:

DEATH COMES EARLY IF YOU BREATHE ASBESTOS. Midway Jewish Center has hired a substandard company to perform DEADLY ASBESTOS ABATEMENT. New York Insulation is a company with a long history of violating the laws that keep their workers and the public safe from asbestos exposure. Exposure to Asbestos Causes Cancer. One Fiber is all it takes.

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Court Rejects NLRB Jurisdiction over Tribal Enterprise

A federal district court in Oklahoma has enjoined the Board from proceeding with its prosecution of an unfair labor practice complaint against a casino owned and operated by an Indian tribe. The July 11 decision, in Chickasaw Nation v. NLRB (Case No. CIV-11-506-W) (W.D. Okla.), is notable both for the grounds on which the court asserted its jurisdiction and the implication for the Board’s jurisdiction over tribal enterprises.

In December, 2010, Teamsters Local 886 filed an unfair labor practice charge against the WinStar World Casino (owned and operated by The Chickasaw Nation) with Region 17 alleging that the employer violated the NLRA by engaging in unlawful surveillance of union activities, interrogation of employees regarding union activity, and an unlawful no-solicitation policy. The charge also alleged that the employer disciplined an employee for union activity and threatened to discharge others. After receiving notification about the charge, The Chickasaw Nation denied most of the allegations in the charge and asserted that the casino was a “tribal government enterprise” and thus was outside of the Board’s jurisdiction.

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Mezonos Maven Bakery, Inc.

In Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court overturned the Board’s award of backpay to an employee who, contrary to the Immigration Reform and Control Act (IRCA) had presented fraudulent work-authorization documents in order to obtain employment from the employer. In Mezonos Maven Bakery, Inc., 357 NLRB No. 47 (Aug. 9, 2011), a Board panel of Chairman Liebman, Pearce, and Hayes concluded that under the precedent established in Hoffman Plastics, the Board cannot award backpay to an undocumented alien even if it is the employer who violated IRCA.

The result in this case is not surprising. What is interesting about this case is a concurring opinion by Chairman Liebman and Member Pearce in which they criticize the Supreme Court’s decision in Hoffman and articulate the principal policy arguments that would compel a different result.

In a footnote, Member Hayes observed that such a criticism of a Supreme Court decision by the Board is “highly unusual” and that the Board’s role is to enforce the Supreme Court’s precedent “without critical comment. It is also the role of Congress to determine whether to alter the law in response to the Court’s decision.”

Significance: It is our view that once the Supreme Court issued its decision in Hoffman Plastics, no other interpretation of the law would be reasonable. We include it here because of the high profile nature of Hoffman Plastics and the unusual critique of the Supreme Court’s decision by Board Members.

 

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Virginia Mason Hospital

In Virginia Mason Hospital, 357 NLRB No. 53 (Aug. 23, 2011), a Board panel of Chairman Liebman and Members Pearce and Hayes split on the application of Board precedent in Peerless Publications, 283 NLRB 334 (1987) in a case where the employer unilaterally implemented a work rule.

As a general matter, issues affecting terms and conditions of employment, including work rules enforceable through discipline, are mandatory subjects of bargaining. Various exceptions and defenses exist to the general rule. The sole issue in this decision was whether the exception articulated in Peerless applied to the employer’s unilaterally implemented “flu-prevention policy requiring nonimmunized registered nurses to wear a facemask or take antiviral medication.”

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