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.
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.
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).
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.
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.
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.
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.
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.”