In this Issue:

News and Analysis

The Good, the Bad and the Ugly

NEWS & ANALYSIS

NLRB closes Boeing case, but battle with Congress goes on – The Boeing case is over. Two days after the Boeing employees in Seattle represented by the International Association of Machinists ratified a new four-year collective bargaining agreement, the National Labor Relations Board approved the IAM's withdrawal of its unfair labor practice charge. In a statement released on December 9, NLRB Acting General Counsel Lafe Solomon said, "This is the outcome we have always preferred...from the beginning of this case and at every step in the process, we have encouraged the parties to find a mutually-acceptable resolution that protects the rights of workers under federal law. The parties' collective bargaining agreement, ratified this week, does just that." Boeing had agreed that it would build a new line of 737 MAX jetliners in Washington State. According to reports from the Bureau of National Affairs, Solomon said, "this case was always about jobs."

Solomon views the settlement as a "win-win," but it leaves unresolved the legal issue of whether the economic effects of long strikes against businesses can be used as a basis for moving work to locations where strikes are less likely.

Rep. Darrell Issa (R-Calif.), Chairman of the House Oversight and Government Report Committee, calls the dismissal a victory for Boeing, its employees, and the people of South Carolina, but he has warned Solomon that his committee's long-running investigation into the complaint will continue. Issa said the committee wants to ensure that the issuance of the complaint was not "a strategic maneuver to provide IAM with leverage for a new collective bargaining agreement."

Republicans seek legislation to prevent mini-bargaining units and "quickie" elections – Although it is unlikely they will ever become law, Senate and House Republicans have proposed bills that would amend the National Labor Relations Act to prescribe specific standards in representation cases. The proposed legislation would, in effect, overturn the Board's recent decision in Specialty Healthcare and Rehabilitation Center, in which the Board ruled that in some cases where the inclusion of additional employees in a proposed bargaining unit is disputed, they should not be included unless they share an "overwhelming community of interest" with the proposed unit. The Board ruling could easily be expanded to include all bargaining unit determinations and allow a proliferation of small units throughout all industries. The Senate bill, similar to the House bill, would remove the Act's reference to "the employer unit, craft unit, plant unit, or subdivision" and substitute a lengthy provision containing a commonly used eight-factor test for whether employees share a sufficient community of interest to be included in a single, larger unit.

The House version of the legislation also includes a provision that would derail the Board's recent resolution to move forward on "quickie" elections. The House proposal would limit the Board's discretion in representation case proceedings by requiring a minimum of 14 days before a pre-election hearing on representation case issues and would also prohibit any election less than 35 calendar days after the filing of a petition.

Republicans join opposition to NLRB notice rule – As Constangy previously reported, five organizations have sued the NLRB seeking orders from federal courts to enjoin the new notice-posting rule scheduled to go into effect on January 31, 2012. Now, BNA reports that John Kline (R-Minn.), Chairman of the House Education and the Workforce Committee, and 35 other House Republicans have joined the court challenges. The legislators have filed substantially identical briefs in the federal courts for the District of Columbia and the District of South Carolina. The GOP legislators argue that the Board's action "accomplishes precisely what Congress considered and rejected when adopting the NLRA; treating a failure to provide notice – to whatever extent it was required – as non-compliance with the Act." According to Kline, "the Obama NLRB is manipulating federal labor policies to advance an activist agenda and it must be stopped."

Yet another unbelievable decision from the Obama NLRB – Would you have ever thought that the lockout of striking workers is equivalent to their reemployment? Well, that is just what the Democrat majority on the NLRB recently ruled in Douglas Autotech Corp. Because the United Auto Workers and local union failed to notify the Federal Mediation and Conciliation Service of its labor dispute before going on strike, the workers lost their status as "employees" under the National Labor Relations Act. The notification is required by Section 8(d)(3) of the NLRA. Three days after the strike began, and after union officials realized they did not provide the required notice, a union representative faxed a letter to the company that the strikers were returning to work and also gave the required notice to the FMCS. However, on the same day, the company informed the union that it was locking out the strikers in support of the company's bargaining position. After three more months of bargaining, the company announced that the entire bargaining unit, including strikers and employees on layoff or leave, were discharged. The UAW filed an unfair labor practice charge challenging the terminations, and an administrative law judge found a violation of the Act.

On appeal, Board Chair Mark Pearce and Member Craig Becker ruled that the strikers were, in effect, reemployed when the company announced the lockout. According to Pearce and Becker, "a lockout presupposes the existence of an employment relationship. . . . Persons who are not employed by an employer may no more be locked out by the employer than strike against the employer." The Board majority also ruled that the employees on layoff and leave of absence were unlawfully terminated because they were terminated solely because of their status as members of the bargaining unit.

With regard to the majority's ruling on the employment status of the locked out strikers, dissenting Member Brian Hayes said the ruling "ignores the common understanding of the term 'reemployed' which has been used repeatedly by unions, employers, and the Board to describe an actual return to work by locked-out employees." Calling a lockout "the antithesis of reemployment," Hayes said, "it strains credulity that Congress envisioned a lockout as an affirmative act of reemployment within the meaning of Section 8(d)(4)." According to Hayes, the strikers were never reemployed and never regained the protection of the Act after their illegal strike.

Hospital could unilaterally implement flu-prevention policy after all – If you have a union, it's always good to have a strong management rights provision in your collective bargaining agreement. That's what "saved" Virginia Mason Hospital when the union challenged its flu prevention policy that required nurses who did not get immunized to wear face masks or take antiviral medication. We previously reported (scroll down to "Core Purposes" Bargaining Exemption Narrowed") that the NLRB had ruled that Virginia Mason could not implement a flu prevention policy because the policy did not fit the Peerless Publications' narrow "core purpose" exemption as a non-mandatory subject of bargaining. The case was remanded to the ALJ for a decision on whether the hospital established any other defense to the unfair labor practice complaint.

Upon reconsideration, the ALJ ruled that the hospital did not violate the Act because the union had waived bargaining over the issue when it agreed to the management rights clause in the labor agreement. The clause gave the hospital a set of "explicit rights," including the right to "require standards of performance...to direct the nurses...to determine the materials and equipment to be used; to implement improved operational methods and operations...and to promulgate rules, regulations and personnel policies[.]" In addition, various hospital documents contained infection control guidelines requiring nurses to wear face masks in certain situations. According to the ALJ, the hospital had "clear and unmistakable" authority to require nurses who had not been immunized against the flu, and who refused to take antiviral medication, to wear face masks when in contact with patients, fellow employees and hospital visitors. The ALJ said this requirement was simply an extension of the infection control guidelines already in effect, which was clearly permitted under the management rights clause.

THE GOOD, THE BAD AND THE UGLY

Fewer union elections during first half of 2011 – A BNA analysis of NLRB representation election data shows that unions participated in 168 fewer representation elections during the first half of 2011 than in the corresponding period in 2010. Unions also won fewer of the elections in which they participated. Although unions affiliated with the AFL-CIO won a greater percentage of elections than unions in the Change-to-Win federation, Change-to-Win affiliates organized more workers. Once again, the SEIU organized the most workers of any union – more than 10,500. Of the 10 most active unions, the Teamsters led, participating in 121 elections through June 2011. Construction unions had the highest election win rates, wining 87.5 percent of the elections in which they participated.

No rat balloon this time – Federal courts and the NLRB have generally allowed unions to display giant rat balloons to publicize labor disputes with employers. However, a federal district court in Ohio has recently refused to grant a temporary restraining order that would have compelled Miami University of Ohio to allow a Laborers' International Union local to display a 25-foot-tall rat balloon on public sidewalks on campus. After campus police stopped the union from inflating the rat balloon on a street running through the campus, the union sued the University's president and police chief. The union argued that its First Amendment rights were violated. While acknowledging that in Tucker v. Fairfield, the U.S. Court of Appeals for the Sixth Circuit ruled that the use of a portable rat balloon is constitutionally protected expression of speech, the district court nevertheless found that the sidewalk on the campus was probably a "limited public forum"; therefore, the union did not have an absolute right to display its rat balloon there.

Obama to nominate two to NLRB – As we reported recently, when NLRB Member Craig Becker's recess appointment expires on December 31, the Board's membership will be reduced to two, causing the Board lose its required quorum and therefore its powers under the NLRA. On December 14, President Obama announced his intent to avert this possibility by nominating two attorneys to the Board, BNA reports. Sharon Block is currently the Labor Department's Deputy Assistant Secretary for Congressional Affairs. Block was a senior attorney reporting to Robert Battista, former Republican Chairman of the NLRB. Obama's second nominee is Richard Griffith, currently General Counsel of the International Union of Operating Engineers; Griffith has served on the Board of Directors for the AFL-CIO Lawyers Coordinating Committee for 17 years.

Obama's nominees could face tough going during Senate confirmation hearings. Calling for a congressional investigation to answer questions about the NLRB's role in the Boeing unfair labor practice complaint, Sen. Lindsey Graham (R-S.C.) stated, "I will continue to block all nominations to the NLRB until we get satisfactory answers regarding their role in this entire saga."

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 130 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com. 

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