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Is the NLRB a bit too union-friendly?

March 21st, 2017  |  Lorene Park

By Lorene D. Park, J.D.

The NLRB was put under the microscope at a February 14 hearing of the House Subcommittee on Health, Employment, Labor, and Pensions, chaired by Representative Tim Walberg (R-Mich.). Most panelists at the hearing, titled “Restoring Balance and Fairness to the National Labor Relations Board,” aligned with the view that the Board in recent years has lost its balance, leaning away from employers and business and more toward employees and unions. Among other actions considered “troubling,” the subcommittee discussed the NLRB’s advancing an ambush election rule and “expanding its joint employer standard.”

Board rulings. Meanwhile, the Board has issued a number of arguably employee- and union-friendly rulings recently. For example, in a February 22 decision, it found that an acting regional director did not err in overruling, without a hearing, Jacmar Food Service’s objections to the solicitation of union authorization cards. That same day, the Board ruled that a nursing home management company unlawfully threatened to “call the cops” after housekeeping staff protested their “rehiring” as probationary workers at the starting wage, with no seniority, and demanded to contact the union.

On February 23, the NLRB opined that Hawaiian Telecom, Inc., acted unlawfully when it ceased providing employees health benefits when they went out on a strike—their eligibility for benefits had already accrued and the employer lacked a legitimate business justification for discontinuing benefits. On February 24, the Board ruled that Verizon’s code of conduct rule restricting the use of personal employee information violated the NLRA because it could be reasonably understood as an attempt to keep employees from discussing the terms and conditions of employment.

In a March 8 ruling, the NLRB found that a country club violated the NLRA when it hired “summer employees” instead of recalling full-time “regular employees” from a seasonal layoff, and unilaterally contracted out bargaining unit work without giving a union notice and an opportunity to bargain over the changes. The Board found no basis to conclude that the union waived its right to bargain by agreeing to a management rights clause, nor was the employer’s conduct permissible under a reasonable interpretation of the CBA.

In the appellate courts. Appearing before federal appellate courts, the Board met with mixed results on the gateway issue of who is covered as an employer or employee under the NLRA. The Fifth Circuit upheld a ruling that an employer and subsidiary constituted a “single employer” and could be liable for denying parent company employees access to the subsidiary’s facilities for handbilling. However, the Sixth Circuit found that substantial evidence did not support the NLRB’s ruling that charge nurses at a long-term care facility were statutory employees (instead of supervisors) and were entitled to elect a union as their exclusive bargaining representative.

In a March 3 opinion, the D.C. Circuit found that the NLRB erred by holding, contrary to recent court precedent, that FedEx drivers were employees under the NLRA. Because the appeals court had previously ruled that single-route FedEx drivers working out of Wilmington, Massachusetts, were independent contractors, not employees, the NLRB could not rule, on a materially indistinguishable factual record, that single-route FedEx drivers located in Hartford, Connecticut, were statutorily protected employees, not independent contractors.

The NLRB also faced challenges beyond that gateway issue. For example, the Sixth Circuit ruled that, contrary to a Board opinion, a general complaint about reductions in employee benefits was not a request to bargain about an employee-recognition program. The recognition program was not the only issue raised by the union rep and the monetary effect was less than four dollars per union member per year. The NLRB also erred, in the Seventh Circuit’s opinion, when it ordered Columbia College Chicago to reimburse a union for negotiation expenses in connection with a successor bargaining agreement.

Board has to explain shift in analysis. On March 7, the D.C. Circuit ruled that the NLRB erred in departing from its own precedent to follow a similar shift in the National Mediation Board’s (NMB) jurisdictional analysis concerning claims brought by airline baggage handlers. Vacating an NLRB order that found a union’s effort to represent airline baggage handlers was governed by the NLRA rather than the Railway Labor Act (RLA), the D.C. Circuit explained that under long-settled NMB precedent concerning RLA jurisdiction (to which the NLRB has historically deferred), the airlines had sufficient control over baggage handlers’ employment with a contractor, so the RLA governed. The NLRB erred in concluding otherwise. While the NMB may have recently shifted its jurisdictional test without explanation, the NLRB had to justify its change: “an agency cannot avoid its duty to explain a departure from its own precedent simply by pointing to another agency’s unexplained departure,” the court said.

Take-away. With these recent examples in mind, there may be some support for House panelists’ view that the Board is less balanced than perhaps it should be in its decisionmaking; favoring employees and unions. And while things may change under the Trump administration, the Board will have to explain any departure from precedent. This could be interesting . . . .