In advance of Thursday’s Senate Committee Hearing, yesterday we posted some of the most recently decided cases likely to be revisited by Chairwoman Liebman’s National Labor Relations Board, once fully constituted.  While the initial post focused on decisions criticized during the December 2007 congressional hearing, there are additional issues likely to be reviewed by the incoming Board early in its tenure.  These include:

  • IBM Corp., 341 NLRB 1288 (June 9, 2004), in which the Board returned to its precedent of not extending Weingarten rights to non-union employees.  In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court determined employees in unionized settings are entitled to have a union representative present at investigatory interviews conducted by employers which the employee reasonably believes could lead to discipline.  Until the decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (July 10, 2000), the Board had never extended Weingarten rights to non-union employees.  Chairwoman Liebman joined with the majority in Epilepsy Foundation, and dissented in IBM Corp
  • Sheet Metal Workers, Local 15, 346 NLRB 199 (January 9, 2006) and Laborers Eastern Regional Organizing Fund, 346 NLRB 1251 (April 28, 2006), wherein the Board addressed the issue of what constitutes "picketing."  Under the NLRA, picketing can be unlawful in certain situations, while "handbilling" is generally considered protected free speech.  In both of these cases, the Board found that unions engaged in picketing because their behavior created a physical barrier to the worksite.  These cases left open, however, the question of whether bannering by itself automatically constitutes picketing.  Bannering is a practice in which  union representatives hold a large banner in front of an employer’s facility criticizing the employer’s employment practices without actually creating a physical barrier to the employer’s facility
  • Oakwood Care Center, 343 NLRB 659 (November 19, 2004), in which the Board returned to its decades old rule that prohibits the certification of "multi-employer bargaining units" without the consent of the employers involved.  It held that Section 9(b) of the NLRA prohibits the Board from recognizing a bargaining unit beyond a single employer unit.
  • On February 26, 2008, the National Labor Relations Board issued a notice of proposed rules in which it proposed creating a new type of jointly-filed representation (RJ) petition that would shorten the period between the filing of a petition and the election. According to the proposed rule, the RJ petition would be filed jointly by a union and employer. It would require an election within 28 days, as opposed to the 42 days currently set as the target for a union-filed RC petition.  Also, it would not require the 30 percent showing of interest unions must present to file an RC petition.  In addition to shortening the deadline for conducting elections, an RJ petition would require the parties to cede authority to the Regional Director to resolve any pre-election disputes, meaning there would be no right to appeal to the Board.  Finally, unfair labor practice (ULP) charges would no longer block elections, but instead would be resolved in any post-election proceedings.

Finally, with congressional support for card check on the wane, organized labor may encourage its new allies on the Board to shorten the time period for elections. The current 42-day standard has been in place since 1996, when the Board set the measure pursuant to the Government Performance and Results Act. The Board appears to be free to change that standard at any time without any formal opportunity for public comment.

If eventually nominated and confirmed, as expected, Craig Becker and Mark Pearce will join Chairwoman Liebman, as a three-vote majority capable of reversing much of this case-law, and advancing other elements of a pro-labor agenda, even without legislative assistance.  Employers must plan accordingly.