Executive Labor Summary
January/February 2005

• Three recent NLRB election rulings reflect the Board’s return to a more rational analysis of pre-election conduct. In the first ruling, a supervisor in an Ohio nursing home solicited employees to sign union authorization cards, urged them to attend union meetings, posted pro-union signs, wore a union pin and suggested they would lose their jobs if the union lost the election. In 1999, the Clinton Board had upheld a union victory, saying that the election could not be set aside unless the pro-union supervisor made an explicit threat or promise. The U.S. Court of Appeals for the Sixth Circuit remanded the case. The new Board, on remand, held it was “inherently coercive” for a supervisor to solicit employees to sign union cards, absent mitigating circumstances, and set the election aside. The second ruling involved a 27-24 union win last year among housekeeping employees at a California hotel. At least nine voters had received a mail copy of the NLRB’s official Spanish-language sample ballot, which had an “X” in the “yes” box along with a handwritten message. The Bush Board majority overturned its hearing officer and found that the ballots had a tendency to mislead employees into believing that the NLRB favored the union, and that the markings on the sample ballot were not clearly attributable to the union and thus were not “campaign propaganda.” The third ruling last November was that the Board would no longer presume that threats to close a plant had been disseminated throughout the voting unit. It overruled Springs Industries, a case decided in 2000, which held that all plant closure threats are so regarded. The majority returned to the 1986 decision in Kokomo Tube in which it declined to presume dissemination of a plant closing threat. From now on, the Board said, “the party that seeks to rely on dissemination throughout the plant [has] to show it.”

• A restructured AFL-CIO is to be the principal agenda item during the February meeting of its Executive Council. The most radical proposals include forced union mergers, offered by an informal alliance known as the “New Unity Partnership” which includes the Service Employees International Union and UNITE HERE. The New Unity Partnership also proposes giving the AFL-CIO Executive Council authority to designate “lead unions” in an industry. The lead unions would receive financial assistance in organizing. Other proposals include spending royalties from the Union Plus credit cards to run a broadened campaign against Wal-Mart, campaigning for health care reform and creating stronger central labor councils.

• The NLRB has reported in fiscal year 2004 that it recovered $208 million in back pay from employers and reimbursement of union dues, fees or fines. This was more than double the $92.4 million recovered during fiscal 2003. Reinstatement offers were obtained for 4,666 workers as remedies for unfair labor practices in the current year as compared with 3,511 in the prior year. By comparison, the Labor Department’s Office of Federal Contract Compliance Programs obtained remedies of $34.5 million for employment discrimination victims during fiscal year 2004, an increase of 31% from the previous year.

• NLRB finds normal workplace conduct rules do not violate restrictions on “concerted activity,” but by only a 3-2 vote. The fact that these rules were challenged at all, and that they survived legal challenge only by a “squeaker” vote, is likely to surprise and cause consternation to many employers. The challenged rules, at an extended care facilities employer in Michigan, prohibited the following:

  • “Using abusive or profane language in the presence of, or directed toward, a supervisor, another employee, a resident, a doctor, a visitor…;”
  • “Harassment of other employees, supervisors and any other individuals in any way;” and
  • “Verbally, mentally, or physically abusing a resident, a member of a resident’s family, a fellow employee, or a supervisor under any circumstances.”

A dietary cook in the facility was discharged after three employees complained that she uttered profanities in their presence and was harassing them. The majority of the Board found that maintaining these rules did not violate the Act because employees could not “reasonably” be discouraged from engaging in protected union or concerted activity for fear of violating these rules. The dissenters saw the words “abusive” and “harassment” as highly subjective and said that the “ill-defined scope” could cause employees to refrain from protected activities such as voicing disagreement with the terms and conditions of their employment. The dissenters would have ruled that the mere maintenance of the rules had


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