• An NLRB three-member panel has ruled that 38 employee pickets at the shareholders’ meeting of a New York manufacturer were unlawfully suspended by the company, despite no-strike provisions in the labor agreement. A dissenting Board member pointed to contract language with the International Brotherhood of Electrical Workers that employees “will not call, participate in or sanction…any strike, boycott, picketing, work-stoppage or slow-down whatsoever.” The other two Board members found that the company had failed to carry its burden of proving that the union had waived employees’ right to the kind of picketing that could not reasonably be expected to result in a work stoppage. The dissenting member relied upon “the plain meaning of the contract language.” In a subsequent public meeting, members discussed their differing interpretations of the National Labor Relations Act. The Republican favored “strict construction,” while the Democrat advocated “fill[ing] in the broad language of the statute.”

• An Indiana book distributor has been ordered to bargain with UNITE after a seven-year contest over unlawful promises that the distributor allegedly made before an election. The employer won by three votes in 1997, but the election was set aside after the Board found that the employer had threatened to withhold a promised wage increase. The D.C. Circuit agreed with the Board, and a second election was held. In the second election, the union won by four votes, but the employer refused to bargain. The Board held in favor of the union again, and the D.C. Circuit has agreed. The case underscores that wages and benefits are “not really frozen” once a union petition is filed; rather, the company is obliged to keep its promises or maintain its practices of periodic wage adjustments. An unlawful refusal to bargain can result in back pay for “unilateral” changes in wages, hours and working conditions for the period of the appeal.

• A decline in union check-off numbers is evidence of loss of majority support, says the Fifth Circuit Court of Appeals, criticizing the contrary position held by the Board. A nursing home changed management firms, and the number of employees authorizing checkoffs declined from 11 to zero. When the new management refused to respond to bargaining requests by the Service Employees International Union, charges were filed, and the NLRB ruled in favor of the union. The Fifth Circuit refused to enforce the NLRB decision, finding that the decline in union check-offs, when combined with other evidence such as testimony reflecting employee unhappiness with the union, was surely sufficient. The Fifth Circuit also criticized a ruling by the NLRB Administrative Law Judge that the testimony of employees was not credible because their recollections lacked sufficient detail. The Fifth Circuit pointed out that the key issue was not whether the ALJ believed the employees’ testimony but, rather, whether the employer believed it and had a good faith doubt of the union’s majority status. The Court found that “the position adopted by the Board would be less one of good faith doubt than of strict liability.”

• The NLRB has agreed to review its existing policy which blocks petitions to decertify unions for a “reasonable period of time” after an employer’s voluntary recognition. By a 3-2 vote of the five-member Board, Chairman Battista and Members Schaumber and Meisburg point to the increased use of recognition agreements which include employer neutrality and a card-check procedure, in contrast to “the superiority of Board supervised secret-ballot elections.” The matter came before the Board after a Regional Director dismissed decertification petitions filed a few weeks after two automotive suppliers had recognized the United Autoworkers union without a secret-ballot election. The majority stresses the importance of employees’ right to choose or reject union representation which “warrant[s] a critical look at the issues raised.” Dissenting Members Lieberman and Walsh assert that the recognition bar “has stood the test of time.” The majority says the issue is whether recognition pursuant to a card-check agreement “should operate as a bar to decertification petitions filed by employees who are not parties to that agreement.”

• A video that depicted union violence at another facility of the same employer was found by the NLRB to be unlawful and required setting aside a secret-ballot election which the company had won. The vote in the summer of 2000 resulted in 523 to 345 against representation by the United Food and Commercial Workers Union at a Georgia poultry processing plant. Eleven years earlier, a strike at the company’s Alabama plant had been marked with violence, and a portion of the video was a “dramatic reenactment” of some of that violence that included pictures and the sound of gunshots and employees throwing rocks and trying to cut the tires of a bus. The election was set aside and the employer required to post notices that it would cease and desist from “threatening the inevitability of strikes and strike violence should employees select the union.” The company pointed to Section 8(c) of the Act, which permits an employer to give “views, arguments and opinions,” and argued that it should be permitted to give its own labor history in the course of a campaign. The Company is expected to appeal.

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