Keefe, Campbell & Associates, LLC

Editor’s comment: If you are a risk, health or safety manager and haven’t heard of EFCA, please send a reply. In short, it will allow unions to start card-campaigns to organize U.S. employers and signals the end of traditional organizing elections. Our current President has announced his intention to sign the bill when it hits his desk. Some observers feel this may cause union ranks to double or triple in the coming years.

However, EFCA is not the only concern. In addition to EFCA, there is the Respect Act which will limit management’s ability to exclude supervisors from bargaining units. Along with EFCA and the Respect Act, there will be an opportunity for an Obama-controlled NLRB to reverse numerous pro-employer board precedents.

Here are some of the NLRB decisions currently in question:

1. Harborside Healthcare: Supervisors Soliciting Authorization Cards

Current law reversed a series of older board decisions. These decisions held solicitation of union authorization cards by employees who are later determined to be supervisors is not objectionable if the supervisor’s actions were not threatening or intimidating. The most recent NLRB held, absent mitigating circumstances, solicitation of an authorization card by a supervisor has an “inherent tendency” to coerce the employee solicited and therefore the challenging employer does not have to establish that the supervisor engaged in coercive conduct.

The Harborside Healthcare decision posed a significant problem for union organizers in that it is often unclear during an organizing campaign whether an employee is a statutory supervisor or not. It is expected an Obama-controlled board will reverse the decision at the first opportunity.

2. Register Guard: E-mail Solicitation

The previous NLRB held employers have a basic property right regarding e-mail systems and are entitled to promulgate and enforce blanket “business only” e-mail policies.

The Board went further and adopted a stricter standard for determining when an employer has discriminatorily enforced its “business only” e-mail policy against union-related solicitation. The Board majority chose to adopt the analysis of the U.S. Court of Appeals for the Seventh Circuit instead of existing Board precedent which effectively did not allow the employer to distinguish between charitable and noncharitable solicitations, or solicitations of a personal nature as opposed to solicitations for an organization.

We expect the holding in Register Guard to be reversed fairly quickly, given many cases presented to the NLRB contain allegations of discriminatory treatment by the employer.

3. Dana Corp.: Voluntary Recognition

The previous NLRB reversed earlier precedent that stood for forty years and held an employer’s voluntary recognition of a labor union did not bar a decertification or rival union petition filed within 45 days of the notice to employees of the voluntary recognition. This may have been the most unpopular NLRB decision for labor because it undermined neutrality/card check and voluntary recognition agreements unions increasingly used as a major organizing device in lieu of filing petitions for election. In addition, the Dana Corp. decision flies in the face of the proposed EFCA legislation. Essentially, EFCA proposes to replace Board elections with card check recognition. If EFCA passes in its current form and Dana Corp. is still standing, Dana Corp. would provide a method for employers to get the election EFCA is designed to abolish. Either way, it is expected that the first challenge to this 45-day rule to come before the new Board will result in reversal.

4. Crown Bolt: Threat of Plant Closure Not Presumed Disseminated Throughout Plant

Crown Bolt held an employer’s threat to close its facility if employees voted for the union will not be presumed disseminated throughout the bargaining unit. The ruling overruled another precedent which held that all plant-closing threats are presumed disseminated throughout the plant. Threats of plant closure have traditionally been considered the most severe form of coercion of employees’ right to organize, so it is predicted the earlier presumption will be restored.

5 Lutheran Heritage Village-Livonia: Work Rule Prohibiting “Abusive Profane” Language

The NLRB set forth new rules for determining whether a work rule is unlawful, requiring a showing of one of the following:

• The employee reasonably construed the work rule to prohibit or restrict protected activity,
• The rule was promulgated in response to union activity, or
• The rule had been applied to restrict the exercise of protected rights.

Applying their own test, the majority held the employer’s rule prohibiting “abusive or profane” language was lawful because it would not reasonably be interpreted by employees to prohibit protected activity.

6. Brevard Achievement Center: Disabled Workers in Rehab Settings are Not Employees

This case held disabled workers in a primarily rehabilitative relationship with their employers are not statutory employees, even though the disabled workers work the same hours, receive the same wages and benefits and perform the same tasks under the same supervisor as the nondisabled employees. The prior Board did not reverse precedent in this case, but the dissent labeled the majority decision as “bad policy” and complained that “it means that the employer’s disabled workers have no protection under the Act.”

Given the fact that Congress has already strengthened the Americans With Disabilities Act (ADA), expanding protections to disabled workers effective in January 2009, it is likely the new NLRB will reverse Brevard when it gets the opportunity.

If you have questions or concerns about continuing changes in your workplace, please send a reply.