The Pendulum Swings: NRLB Pushing Union Agenda

The National Labor Relations Board, emboldened by the recess appointments of member Craig Becker and acting general counsel Lafe Solomon, has taken a decided turn in the direction of union rights. In the last two months alone, the Board has:

1.          Held that employers and unions lawfully may enter into a pre-recognition agreement governing the framework for collective bargaining and promising that the employer will recognize the union if the union establishes majority support through a card check. The 2-1 decision (Dana Corp., 356 NLRB No. 49) upheld dismissal of a complaint filed by the NLRB General Counsel, alleging that the pre-recognition agreement between Dana Corp. and the United Auto Workers constituted unlawful assistance by Dana to the UAW violation of Section 8(a)(2) of the National Labor Relations Act and unlawful restraint and coercion by the UAW of employees’ Section 7 rights to organize and bargain collective – or not. While stopping short of adopting a general standard for such agreements – and cautioning that each such agreement must be judged on its specific provisions and circumstances, the board’s ruling establishes that employers and yet-to-be-recognized unions may enter agreements that contemplate future bargaining on specific terms and conditions of employment.

2.           Adopted a number of enhanced enforcement efforts and penalties that are part and parcel of the sidelined Employee Free Choice Act. A memorandum (No. 11-01) issued December 20, 1010, by Lafe E. Solomon, the NLRB’s acting general counsel, instructs to pursue seldom used remedies for unlawful conduct during union organizing campaigns, including: (A) Actual reading to employees by a management official, instead of simply the posting , of notices of employer violations; (B) Direct union access to employees, including lists of employees’ names and addresses prior to the filing of a petition, in cases where there has been an “adverse impact” on employee and union communication; and (C) Allowing unions other extraordinary access, including to non-work areas during non-work time, in cases where there has been a “severe” impact on employee/union communication.  The memorandum was the second by Solomon seeking to “make the principle of employee free choice meaningful.” The first, on September 30, 2010 (No. 10-07), instructed regional offices to seek Section 10(j) injunctions for discharge-related and other unfair labor practice charges – a remedy traditionally reserved for hallmark violations such as threats of plant closure or the promise or grant of benefits.  Solomon’s rationale: such unlawful acts by employers “nip in the bud” employees’ efforts to engage in the core Section 7 rights to self-organization and must be dealt with swiftly and decisively.

3.         Proposed a rule requiring private-sector employers to post a notice of employee rights under the NLRA. The proposed rule (RIN 3142-AA07, published in the Federal Register on December  22, 2010)  adopts verbatim the notice of rights required to be posted by federal contractors under  an executive order signed by President Obama. The 11 x 17-inch poster would be available on the NRLB’s web site, but would have to be reproduced in color and displayed prominently along side other mandatory federal and state labor law posters. The board majority (Republican member Brian E. Hayes issued a dissenting view) said the notice is “central to advancing the NLRA’s promise of ‘full freedom of association self-organization, and designation of representatives of their choosing (NLRA Section 1).’ ”  Opponents have questioned the Board’s authority to issue such a rule and criticized the notice’s distorted explanation of employee rights under the law. The comment period on the proposed rule closes February 22, 2011.

4.         Authorized its general counsel to sue attorneys general in Arizona, South Carolina, South Dakota and Utah to stop enforcement of state constitutional amendments requiring secret-ballot elections in union organizing campaigns . The amendments, passed overwhelmingly by voters in November, were a pre-emptive strike at the card-check provision of the Employee Free Choice Act, whose future remains uncertain at best. In his January 13th letters to the attorneys general, Solomon stated that the amendments conflict with employee rights and employer obligations under the NLRA, which provides for union recognition by means other than a secret-ballot election. Solomon gave the attorneys general two weeks to respond, otherwise he would file suit in federal court. That’s just fine with Utah Attorney General Mark Shurtleff, who was quoted as telling Solomon to “bring it on.”