New Proposed and Enacted NLRB Changes

December 07, 2010

OVERVIEW

The National Labor Relations Board (NLRB) has a great deal of power in forming labor relations mandates. The Board normally consists of five (5) members who decide Labor Relations cases that require interpretation of the National Labor Relations Act (NLRA). However, as of late August 2010, the Board is operating with only four (4) members: three Democrats and one Republican.

Board composition may lead to significant policy changes making it easier for unions to form. The following explains the possible actions the NLRB may take.

ADMINISTRATIVE RULEMAKING

The NLRB's chair, Wilma Liebman, has expressed an interest in administrative rulemaking. Recently, the new NLRB used its power to implement rulemaking:

Effective June 21, 2010 — Federal contractors and subcontractors are required to include specific clauses in their contracts — as well as posting notices in the workplace — which should advise employees of their rights under the NLRA.
The concern with the NLRB engaging in administrative rulemaking is that the Board will gain the ability to advance pro-union policies. Recent events indicate that the NLRB may make decisions that could make the Employee Free Choice Act (EFCA) or Card Check a reality. Currently, employers can require a secret ballot union election supervised by the NLRB. Nevertheless, with a new Democratic NLRB, the Card Check process may be imposed through adjudication. This means that if the right cases come along, the NLRB could rule that a company must recognize a union formed through the Card Check process. Other issues, such as expediting the union representation election process or recognition of minority unions, could be affected by administrative rulemaking.

REVERSAL OF BUSH ERA ADMINISTRATION

It is likely the NLRB will revisit decisions made during the Bush Administration. For example, one previous board ruling held that employees could file a decertification petition within 45 days of voluntary recognition of a union. Experts agree that this case will most likely be overturned by the new NLRB. Other issues from the Bush Era that may be reviewed and overturned by the new NLRB include:

Employer rights to prohibit supervisors from engaging in pro-union activity

The standards for determining who is a statutory supervisor

Representation rights of nonunion workers

Limitations on liability for back pay to union "salts"

Employer rights to permanently replace economic strikers

Whether an employer's reasonably based, but unsuccessful, lawsuit against a union constitutes an unfair labor practice when initiated with a retaliatory motive

The standards for combining in one collective bargaining unit: temporary workers jointly employed by a staffing company and a client employer, with regular workers solely employed by the client employer

Cases pending before the NLRB cite these key issues:

Whether an employer that knowingly employs undocumented workers must pay back pay if the workers are unlawfully terminated for pro-union activity

The lawfulness of an employer's pre-recognition bargaining with a union that does not represent a majority of its employees

Property access rights of a contractor's employees working on another employer's premises

RECENT CASE DECISIONS

1. Kentucky River Medical Center, 356 NLRB No. 8 (2010). In a unanimous decision, the Board has decided that back pay calculations will no longer be based on simple interest. Instead, they will use a daily compound interest formula.

Such a change in calculating interest greatly increases the employer's liability, particularly given the lengthy amount of time that it can take to reach a final decision in an unfair labor practice case. For example, an employee making $50,000.00 a year that receives three year's back pay would receive, under the Board's traditional simple interest calculations, a total of $162,000.00. Under the new daily compounded interest formula, the same award would now be $165,962.90.

2. J. Picini Flooring, 352 NLRB No. 9 (October 22, 2010). In a 3-1 decision, the Board announced that it will now require employers and unions to post remedial notices electronically where it is shown that the employer/union regularly communicates with its employees/members in such fashion.

Thus, in addition to a traditional physical posting, remedial notices may now be required to be posted on intranet or Internet sites, emailed to employees, or through other electronic means, depending on whether or how the employer/union regularly communicates with its employees/members.

3. United Bhd. of Carpenters Local 1506, 355 NLRB No. 159 (Aug. 27, 2010). This first case has set the precedent for union bannering. The Board found union bannering to be a permissible, protected activity under the National Labor Relations Act.

The NLRB has upheld this decision with the following cases already. [United Bhd. of Carpenters Local 1506 (AGC San Diego Chapter), 355 NLRB No. 191 (Sept. 22, 2010); Southwest Reg'l Ccl. of Carpenters (Carignan Constr.), 355 NLRB No. 216 (Sept. 30, 2010); etc.]

The question before the Board was whether the bannering in the cases at bar was more like picketing or hand billing; the Board majority held that the bannering was not coercive and did not constitute unlawful picketing

SUMMARY

In conclusion, significant pro-union changes are being imposed upon employers. It is likely that more changes will be made in the coming future. For this reason, it is in an employer's best interest to examine their employee relations to promptly address problem areas. Now is the time for employers to understand their rights and how to remain union free. SESCO has an unsurpassed "win" rate over our 65 year history. Contact SESCO by phone at 423-764-4127 or by email at sesco@sescomgt.com . to discuss our Labor and employee relations training and union free services.