Pending NLRB Cases

Last updated October 24, 2007

I. Pending NLRB Cases on Neutrality and Card Check

A. Pre-Recognition Bargaining

Dana Corp., Case No. 7-CA-46965, addresses whether an employer and a union may “pre-negotiate” certain terms and conditions of employment in a neutrality agreement entered into before the union becomes the representative of the employees in question.

Dana Corporation manufactures automobile parts and components. It has approximately 90 U.S. facilities. The company and the United Auto Workers union (UAW) are parties to collective bargaining agreements covering eight of those facilities. In 2003, Dana and the UAW entered into a “letter of agreement” applicable to organizing efforts by the union at other Dana facilities.

Among other things, the letter of agreement provided —

• That the company would remain neutral in the event the union sought to organize employees;
• That neither the company nor the union would make negative statements about each other;
• That the company would not say or do anything that implied opposition to unionization;
• That the company would inform employees that it had a “constructive” relationship with the UAW;
• That, on request, the company would provide the union with a list of the names and home addresses of non-union employees;
• That the company would provide the UAW access to non-union employees during the workday for meetings during work time;
• That the company would voluntarily recognize the union upon a demonstration of majority support;
• That collective bargaining would occur on an expedited schedule;
• That during bargaining, the union would not undermine the company’s efforts to control healthcare costs, including current “solutions” such as “premium sharing, deductibles, and out of pocket measures;”
• That any contract between the parties would include “team-based approaches,” an attendance policy,” continuous improvement,” “flexible compensation,” and mandatory overtime;
• That any collective bargaining agreement would last for at least four years; and
• That if the parties could not agree to terms, the terms and conditions of employment would be set by interest arbitration.

Three individuals filed unfair labor practice charges with the NLRB alleging that the letter of agreement constituted an unlawful pre-recognition contract in violation of the NLRA. The General Counsel, relying on Majestic Weaving Co., 147 N.L.R.B. 859 (1964) (bargaining prior to attaining majority status is unlawful), enf. denied on other grounds, 355 F.2d 854 (2d Cir. 1966), issued a complaint.

The General Counsel argued that in the letter of agreement, the union had agreed to

“substantive terms and conditions of employment, most of which were concessionary in nature, in exchange for card check and neutrality provisions that would expedite the recognition processes at the plant.” If such agreements were permissible, the General Counsel argued,

Unions could just go to employers and offer up concessions at the expense of employees they do not and may never represent. Those negotiations could take place without the employees even knowing about it, and the agreements, as in this case, could be kept confidential. An employee might never know that the union made these concessions in order to win an expedited election or card check.

The Administrative Law Judge (ALJ) on April 8, 2005 held that Dana had stopped short of bargaining with the union on behalf of non-union employees and dismissed the complaint. Alternatively, the ALJ suggested that Majestic Weaving Co. had been overruled by Kroger Co., 219 N.L.R.B. 388 (1975), which upheld as lawful terms in a collective bargaining agreement that required the employer to extend the contract to new stores upon the union’s demonstration of majority status.

The charging parties filed exceptions to the ALJ’s dismissal. On March 30, 2006, the Board issued a “Notice and Invitation” to file Amicus Briefs in the case no later than April 27, 2006. This case has been ripe for Board decision since that date. There are a number of indicators, including public statements by NLRB Chairman Robert Battista, that a decision may be issued in Dana Corp. by the end of 2007.

B. Waiver of Employer’s Right to Demand NLRB Election

Shaw’s Supermarkets, Case No. 1-RM-1267, arises in a context similar to Dana Corp., Case No. 7-CA-46965, In Shaw’s Supermarkets, the company and the union were parties to a collective bargaining agreement containing the following provision:

When the Employer opens new stores within the geographic area described in Article 1, the Employer will allow access within the store prior to opening during the hiring process, will remain neutral, and will recognize the Union and apply the contract when a majority of Employees have authorized the Union to represent them.

Such “after-acquired stores” clauses have been presumed lawful at least in the grocery store industry since Kroger Co., 219 N.L.R.B. 388 (1975). As noted above, however, the validity of agreeing in advance to apply an existing contract to a yet-unorganized facility may be affected by the Board’s pending decision in Dana Corp. But Shaw’s presents the additional question of whether an employer can waive its right to a secret-ballot election.

When Shaw’s Supermarkets opened a new store in 2003, the union collected authorization cards from a majority of employees and demanded recognition. The employer refused and filed for an NLRB-conducted secret-ballot election. The Regional Director initially dismissed the employer’s request without a hearing, but the Board in 2004 reversed and remanded, instructing the Regional Director to hold a hearing to determine —

(1) Whether the Employer clearly and unmistakably waived the right to a Board election; (2) if so, whether public policy reasons outweigh the Employer’s private agreement not to have an election.

The Board noted,

With further respect to the second issue, we have some policy concerns as to whether an employer can waive the employees’ fundamental right to vote in a Board election. It is clear that the Board’s election machinery is the preferred way to resolve the question of whether employees desire union representation. That method, as compared to a card-check, offers a secret ballot choice under the watchful supervision of a Board agent.

[footnotes omitted]

On March 22, 2005, the Regional Director issued a Decision and Order finding that the employer had clearly and unmistakably waived its right to an election. The Regional Director did not, however, address the public policy issue. In April 2006, the Board granted the employer’s Request for Review of the Regional Director’s decision, but it has not yet issued its decision in the case.

C. Right of Employees to NLRB Decertification Election After Employer’s Voluntary Recognition

In another matter involving Dana Corporation, the consolidated cases of Dana Corporation and Metaldyne Corp., Case Nos. 8–RD–1976, 6–RD–1518, and 6–RD–1519, the Board has agreed to address the rights of employees to request a decertification election shortly after their employers have extended voluntary recognition to a union.

In each of the consolidated cases, the employers agreed to recognize unions if the unions were able to obtain signed authorization cards from a majority of employees. When the unions obtained the cards, the employer extended recognition and began bargaining. Within weeks of the recognition, some employees in each case filed a petition with the NLRB to conduct a secret-ballot election to decertify the unions. In each case, the Regional Directors dismissed the decertification petitions.

The Regional Directors relied on longstanding Board policy that voluntary recognition of a union in good faith based on demonstrated majority status will bar a decertification petition for a reasonable period of time. E.g., Keller Plastics Eastern, Inc., 157 N.L.R.B. 583 (1966); Sound Contractors Assn., 162 N.L.R.B. 364 (1966).

In its June 7, 2004 decision granting review of the Regional Directors’ dismissals, a majority of the Board stated as follows:

We acknowledge current precedent. But that precedent is based upon a union’s obtaining signed authorization cards from a majority of the unit employees before entering into the agreement with an employer, while in both of the instant cases, an agreement was reached between the union and the employer before authorization cards, evidencing the majority status, were obtained. In addition, we believe that changing conditions in the labor relations environment can sometimes warrant a renewed scrutiny of extant doctrine. As our colleagues acknowledge, the change here is that the use of voluntary recognition has grown in recent years. Although no party here challenges the legality of voluntary recognition, the fact remains that the secret-ballot election remains the best method for determining whether employees desire union representation. In such an election, employees cast a secret vote under laboratory conditions and under the supervision of a Board agent. By contrast, a card-signing guarantees none of these protections. The issue raised herein is the extent to which, if any, a voluntary recognition should be given election “bar quality.” The issue is significant because “bar quality” means that, for some period, the employees will not be able to exercise their Section 7 right to reject the union and/or choose a different one.

Dana Corp., 341 N.L.R.B. 1283 (2004).

The Board issued its decision in Dana Corp. on September 29, 2007. The NLRB held that the recognition bar doctrine should be modified to permit employees to file or support a decertification or election petition within 45 days of receiving notice of the recognition. Under the new rule, employees must receive adequate notice of the employer’s voluntary recognition of a union. Employees then have 45 days from the date of the notice to file a decertification petition or support a rival union’s election petition. The petition must be supported by 30 percent or more of the unit employees; however, documentation of that support may be obtained either pre- or post-recognition. If no notice of recognition is given, the recognition bar does not apply at all, and employees may file or support a decertification or election petition at any time after recognition of the union. For more information about this and other recent NLRB decisions, please see our October 15, 2007 Legal Alert.

D. Right of Employer to NLRB Election

In Marriott Hartford Downtown Hotel, 347 N.L.R.B. No. 87 (2006), the Board agreed to address whether a union’s request for a neutrality agreement constitutes a current request for recognition that will trigger an employer’s right to petition the Board for a secret-ballot election.

When a Marriott hotel opened in Hartford, Connecticut in August 2005, a union sought to negotiate what it called a “labor peace agreement” with the employer. The union indicated that the terms it was seeking included the following:

• a “card check” procedure ;
• union access to hotel employees in nonpublic areas of the hotel; and
• a promise that the employer would not interfere with the organizing effort or mount a campaign with its employees opposing the union.

In connection with its request to negotiate the “labor peace agreement,” the union wrote a letter to the employer stating as follows:

Because unions and employees are permitted to strike, boycott, or picket under the N.L.R.A., regardless of their representational status, organizing drives are often attended by conflict. We believe that it would be in the best interests of the Hotel and the Union to avoid such conflict in favor of mutually agreed ground rules.

The union solicited support from a host of religious leaders, community activists, and city and state officials. The union also notified the local newspaper that “Union organizers, politicians, clergy and others plan to protest today in front of the Connecticut Convention Center and its adjacent hotel, a rally to focus attention on the process by which workers at the two facilities should unionize.”

Rather than agree to the union’s terms, the employer filed a petition requesting that the NLRB conduct a secret ballot election. Section 9(c)(1)(B) of the NLRA provides that an employer may file such a petition when “ one or more individuals or labor organizations have presented to him a claim to be recognized as the representative.” Under current Board interpretation of this statutory language, an election petition may be processed by the agency only when there is a present demand for recognition. E.g., New Otani Hotel & Garden, 331 N.L.R.B. 1078 (2000). Because the union had demanded agreement only with respect to a process for determining majority status and had not made a “present demand for recognition,” the Regional Director dismissed the petition.

On August 4, 2006, a majority of the Board granted the employer’s Request for Review, noting that —

Employees have the right to unionize or refrain from unionizing. Our purpose here is simply to inquire further as to how best to effectuate those rights. More particularly, there is a genuine issue as to whether the Union was requesting an agreement for card-check recognition, and whether such a request was a request for recognition. [footnote omitted] Further, there is a policy issue as to whether an election (through the Employer’s RM petition) is the better way to ascertain employee free choice. That free choice lies at the heart of employee rights.

347 N.L.R.B. No. 87 at 1.

In a footnote, the majority made a point of observing that “Sec. 9(c)(1)(B), the section of the Act providing for RM petitions, makes no mention of a claim for present or immediate recognition.”

On September 14, 2007, a three-member panel of the Board issued an unpublished opinion affirming the Regional Director’s dismissal in Marriott Hartford Downtown Hotel . Although the panel gave no explanation of its reasons, it was probably because two days earlier the Board had granted a Request for Review in Farmer Joe's Marketplace Inc. , No. 32-RM-805.

In Farmer Joe's Marketplace, the union handbilled and held rallies at the Employer’s two stores and advocated a consumer boycott. The union had demanded that the Employer sign a neutrality agreement that included card check recognition.

Unlike the Marriott Hartford Downtown Hotel case, where the union made no claim of majority support, s ome of the union’s handbills in Farmer Joe's Marketplace asserted that “the majority of workers…signed union authorization cards…,” and “Workers at Farmer Joe’s want a union.”

II. Pending NLRB Cases on Electronic Communications

In Prudential Ins. Co., Case No. 22-RC-12173, a union sought to represent a unit of insurance agents located throughout the United States. The employer maintained an electronic communications rule stating as follows:

E-mail is a business tool, to be used for business communications among employees and other authorized users. All users are required to use this resource in an efficient, ethical and lawful manner, and solely for business purposes. Likewise, all users are to adhere to the same standards for E-mail as are expected for written business communications or public meetings. This policy pertains to the transmittal of E-mail either within or outside the Company. All E-mail communications, including all information stored, transmitted, received or contained in Prudential's E-mail systems, are the sole property of Prudential.

The employer acknowledged that its policy prohibited employees from using e-mail to communicate about union matters.

As noted above, the insurance agents at issue in Prudential were located throughout the U.S. Many of them worked from home or from their own offices. The Administrative Law Judge noted that a significant amount of employee communications were conducted through e-mail, through the employer’s intranet site, and through the internet. Noting that Board law permits an employer to bar employees from distributing literature in work areas but does not allow a total ban on “talk,” the ALJ noted the difficulty in analyzing electronic communications:

In one sense, E-mails are related to distributions of literature in that they can be used to post text messages onto a kind of electronic bulletin board. In another sense, since E-mails, (even in the absence of instant messaging), can be used to engage in a type of almost real time communication, they are similar to telephone conversations. . . . For better or worse, although they share characteristics of each, E-mail should have a pigeonhole of its own.

Similarly, the relevant work area in this case is ambiguous inasmuch as it is located wherever the employee happens to be at the time he logs on to his computer. The work area may be on the Company's private property. But it also may be at the employee's home, in a hotel room, at a client's house or elsewhere.

In light of the communications difficulties posed by agents’ geographic disbursement, the intense reliance on e-mail in every aspect of the employment relationship, and other factors, the ALJ held that the ban on union-related e-mails was unlawful.

In another e-mail case, Guard Publishing Co., Case No. 36-CA-8743-1, employees of a newspaper publisher in Eugene, Oregon were represented by a union. The employer maintained a “Company Communications Policy” providing that “[c]ommunications systems are not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” When a union-represented employee sent an e-mail to co-workers encouraging them to participate in concerted activity, the employer issued a written warning. The union filed unfair labor practice charges claiming the policy and the discipline were unlawful.

The union and the General Counsel argued in Guard Publishing Co. that an employer’s e-mail system constitutes a “workplace” and that employee solicitation cannot be totally banned without justification. The Administrative Law Judge rejected this argument and held that the policy was not unlawful on its face. However, because the employer permitted other nonbusiness uses, the ALJ found that the policy was discriminatorily applied, and the discipline was deemed to be unlawful.

In a rare move, the NLRB on January 10, 2007, issued a “Notice of Oral Argument and Invitation to File Briefs” in Guard Publishing Co. The Notice invited the parties and amici to address the following questions:

1. Do employees have a right to use their employer’s e-mail system (or other computer-based communication systems) to communicate with other employees about union or other concerted, protected matters? If so, what restrictions, if any, may an employer place on those communications? If not, does an employer nevertheless violate the Act if it permits non–job-related e-mails but not those related to union or other concerted, protected matters?
2. Should the Board apply traditional rules regarding solicitation and/or distribution to employees’ use of their employer’s e-mail system? If so, how should those rules be applied? If not, what standard should be applied?
3. If employees have a right to use their employer’s e-mail system, may an employer nevertheless prohibit e-mail access to its employees by nonemployees? If employees have a right to use their employer’s e-mail system, to what extent may an employer monitor that use to prevent unauthorized use?
4. In answering the foregoing questions, of what relevance is the location of the employee’s workplace? For example, should the Board take account of whether the employee works at home or at some location other than a facility maintained by the employer?
5. Is employees’ use of their employer’s e-mail system a mandatory subject of bargaining? Assuming that employees have a Section 7 right to use their employer’s e-mail system, to what extent is that right waivable by their bargaining representative?
6. How common are employer policies regulating the use of employer e-mail systems? What are the most common provisions of such policies? Have any such policies been agreed to in collective bargaining? If so, what are their most significant provisions and what, if any, problems have arisen under them?
7. Are there any technological issues concerning e-mail or other computer based communication systems that the Board should consider in answering the foregoing questions?

Oral argument was held on March 27, 2007.

III.  Pending Case on Property Access

the National Labor Relations Board announced on September 4, 2007 that it will hear oral arguments in New York New York Hotel, LLC, d/b/a New York New York Hotel and Casino , Case 28-CA-14519. The case is merely the latest in a long line of cases to address this controversial topic. In a different context, the Supreme Court has affirmed what most property owners believe: “The right to exclude others is one of the most essential sticks in the bundle of rights that are commonly characterized as property.” That apparently is not always the case in labor law, and the National Labor Relations Board in particular has not been impressed with and employer/property owner’s “the right to exclude.”

In very general terms, under the current rulings of the Board and courts:

• Off duty employees generally have the right to come onto the certain non-working areas of their employer’s property to engage in union organizing activities; and
• Non-employee union organizers do not have the right to come onto the employer’s property unless no reasonable “nontrespassory” means are available for those organizers to communicate with employees.

The Board recently held that employees have access rights at all of their employer’s facilities, even facilities where they do not work.

New York New York Hotel deals with a the employees of a restaurant located on leased space inside a hotel and casino property. The hotel/casino (NYNY) and restaurant (Ark) are owned by different companies. Some restaurant employees who supported union organizing at their company engaged in handbilling aimed at the hotel/casino’s guests and customers.

In announcing the Oral Argument, the Board invited the parties and amici to submit briefs addressing the following questions:

1. Without more, does the fact that the Ark employees work on NYNY’s premises give them [employee access] throughout all of the non-work areas of the hotel and casino?
2. Or are the Ark employees invitees of some sort but with rights inferior to those of NYNY’s employees?
3. Or should they be considered the same as nonemployees when they distribute literature on NYNY’s premises outside Ark’s leasehold?
4. Does it matter that the Ark employees here had returned to NYNY after their shifts had ended and thus might be considered guests, as NYNY argues?
5. Is it of any consequence that the Ark employees were communicating, not to other Ark employees, but to guests and customers of NYNY (and possibly customers of Ark)?