FRONT PAGE CONTRIBUTOR
The Union-Controlled NLRB Strikes Again!
Employees' Vote to Decertify Union Five Years Ago Voided Over Employer Handbook
Before going into the another, fairly-recent example of a union-run bureaucracy run amok, let’s review some of President Obama’s union-controlled NLRB’s actions to date:
- Prosecuting an employer for opting to open a non-union assembly plant
- Suing states whose voters prefer secret ballots over card check
- Finding an employer guilty of unfair labor practices for not letting off-duty workers of a contractor on to the employer’s property
- Giving unions the okay to let their union supporters threaten non-union supporters with physical violence
- Moving to humiliate employers, as well as giving unions access to employees and property
- Considering forcing all NLRA-covered employers to post notices telling employee how to unionize
- Contemplating letting unions unionize workers into micro-unions
- Undermining union-free employees by giving unions (and employers) the right to negotiate “sweetheart deals” (before the union represents said employees) in exchange for unionizing employees
Of course, as the NLRB has become union bosses’ go-to agency to enact an agenda that they couldn’t otherwise get through Congress, there are other NLRB actions than just these that are listed.
For example, in a recent case that has significant ramifications on employers and employees who wish to remain (or become) union-free, the Obama NLRB gave unsuccessful unions a way in which to use employers’ handbooks to nullify employee votes. Now, if employees reject unionization (or decertify a union), unions can get a “do over” simply based on the most frivolous of complaints about an employer’s handbook.
In the decision, published on March 28th, Obama’s NLRB issued ruled on a decertification election where unionized employees voted 47-46 to kick an unwanted union out of their workplace. The election took place nearly five years ago—in 2006.
However, due to the NLRB’s giving the union the ability to legally maneuver around the employees’ decertification by filing spurious unfair labor practice charges. As a result, the employees have been stuck in unionized limbo for nearly five years. Now, the NLRB has just decided the employees have to vote again.
While the details of the case are extremely interesting, the case should cause employers grave concerns about the policies in their employee handbooks going forward.
The case is explained more thoroughly by the attorneys at Littler who wrote this brief, but here’s a summary:
In a two-to-one majority decision, the National Labor Relations Board in Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011) expanded its view regarding objectionable handbook rules and held that an employer’s mere maintenance of an overbroad rule in its employee handbook was sufficient to warrant setting aside the election results in a decertification election. This decision makes it much easier for unions to overturn close elections by arguing that overbroad policies could have affected the outcome of the election. While this case arose in a decertification context, unsuccessful unions in representational campaigns also are likely to use this new analysis to try to overturn unfavorable results and get a second shot in re-run elections.
Below are some of the highlights of the case to illustrate how the employer bent over backwards to appease the union—even to the detriment of the employees—and how far the Obama NLRB is willing to go to undermine employees’ desires if they wish to remain (or become) union-free.
Note: Employers, you will want to read the entire Littler briefing here and will likely want to call a competent labor attorney to ensure your employee handbook does not run afoul of the NLRB’s new standards.
What is egregious for the employees in this case are several factors:
- The employer had not opposed unionization and, in fact, voluntarily recognized the union, working with the union by agreeing to neutrality and card check in order to unionize the employees in 2004
- During the employees’ 2006 decertification effort, the employer took a “cooperative position” with the union:
From the NLRB’s decision:
It instructed its supervisors to take a “neutral if not positive” line concerning the Union in discussions with employees, and it issued a letter to employees noting that its relationship with the Union had been “positive.” The Employer also responded with corrective action to the Union’s complaints of supervisor misconduct.
- After employees petitioned for an election, but before the narrow vote to kick the union out was taken, the union filed several unfair labor practice charges about the allegedly over-broad statements in the employer’s handbook—something the union never objected to in the previous two years of representing the employees.
The Union did not object to any of the rules in the handbook before the decertification petition was filed. But, on July 17—6 weeks after the petition was filed, and 9 weeks before the election—the Union filed an unfair labor practice charge alleging that seven of the rules in the handbook were unlawful.
- Despite the fact that the union never objected to the rules in the handbook previously, the Obama NLRB found three of them objectionable.
…we find that (as asserted in Objection 7) the Employer’s maintenance of three rules in its handbook for employees—pertaining respectively to solicitation, “loitering,” and the wearing of emblems and buttons—constituted objectionable conduct and that the election must be set aside.
In all, this is yet another example of the depths to which the union-controlled NLRB will sink in order to appease its union bosses.
“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776