{"id":37972,"date":"2016-03-31T19:26:17","date_gmt":"2016-04-01T00:26:17","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/unions-cheer-as-nlrb-overrules-four-representation-case.html"},"modified":"2016-07-05T10:34:02","modified_gmt":"2016-07-05T15:34:02","slug":"unions-cheer-as-nlrb-overrules-four-representation-case","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/unions-cheer-as-nlrb-overrules-four-representation-case.html","title":{"rendered":"Unions Cheer as NLRB Overrules Four Representation Case Precedents"},"content":{"rendered":"
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n\n

An earlier Employment Law Alert article (May 1999) noted that Board Chairman John Truesdale planned to attack the Board\u2019s backlog by tackling several cases pending undecided before the Board for many months and, in some cases, many years. On July 26 and 27, 1999, Chairman Truesdale joined with the two Democratic appointees (Sarah Fox and Wilma Liebman) to remove three \u201cold\u201d cases from the Board\u2019s docket. Each resulted in a union victory, overruling in total no fewer than four prior Board decisions. That was essential because long-standing precedents favored the employer\u2019s position in each case. Prior Board panels had been stymied because adhering to applicable precedents would have produced three employer victories. The previous Board Chairman, William Gould, was clearly not willing to discard applicable Board precedents so readily. Once a Board majority (including Chairman Truesdale in each case) was amassed in favor of overruling these precedents, those precedents were history.<\/p>\n

These were truly \u201cold\u201d cases. The Board granted review of the Regional Director\u2019s unit ruling in Deposit Telephone Co., Inc<\/i>., 328 NLRB No. 151 (July 27, 1999) on September 22, 1997. It heard oral argument in Randall Warehouse of Arizona, Inc.,<\/i> 328 NLRB No. 153 (July 27, 1999), on August 7, 1996. The oldest case by far was Mississippi Power & Light Company<\/i>, 328 NLRB No. 146 (July 26, 1999). The Board granted the employer\u2019s request for review in that case on March 25, 1994. The arrival of Chairman Truesdale and the willingness of the current Board to overrule many years of established Board precedents were the catalysts that produced decisions at the Board level.<\/p>\n

Deposit Telephone<\/b><\/p>\n

Over three decades of established Board precedents disappeared in Deposit Telephone<\/i>. By a 3-to-2 vote (with Republican appointees Brame and Hurtgen dissenting), the Board overruled both Red Hook Telephone<\/i>, 168 NLRB 260 (1967), and Fidelity Telephone<\/i>, 221 NLRB 1335 (1976). Those earlier decisions approved comprehensive or wall-to-wall bargaining units<\/a> at small regional telephone companies. By insisting on bargaining units coextensive with the employer\u2019s entire workforce, the prior Board routinely rejected representation petitions by unions seeking to represent smaller employee groupings. In Fidelity<\/i>, for example, the union unsuccessfully sought to carve out a unit of 25 traffic department employees from an entire workforce complement of 58 that serviced three small Missouri communities.<\/p>\n

These precedents were found directly applicable when the Regional Director for Region 3 (Buffalo) dismissed an IBEW petition to represent 14 Deposit Telephone employees (13 customer service technicians and 1 maintenance employee) out of a total employee complement of 33. This small regional telephone company serviced 7,000 customers over a 400 square mile service area. All 33 employees worked out of the same facility in Deposit, New York, 25 miles southeast of Binghamton. Despite considerable functional integration, IBEW sought to represent only the field employees who reported to the back portion of the single headquarters facility. IBEW wanted nothing to do with the non-field employees who worked in the front of the same building. The front-line supervisors for the two \u201csegments\u201d were different although ultimate supervision was identical. Finally, although there was \u201coccasional\u201d interaction between the two employee groups, the Board found there was \u201clittle temporary or permanent interchange between them.\u201d<\/p>\n

Dissenting members Brame and Hurtgen hit the decisional nail on the head. By reversing directly applicable precedents, the Board majority \u201cdecided to fragment the Employer\u2019s operations to conform with the extent of the [IBEW\u2019s] organizing campaign.\u201d The Board is not supposed to consider \u201cextent of organization\u201d as a relevant unit factor. Yet, it does it all the time and did it again in this case. The first \u201crationale\u201d that follows the Board majority\u2019s decision to overrule Red Hook and Fidelity and to declare the IBEW\u2019s fragmented 14-person unit appropriate is that no other labor organization sought to represent this small telephone company\u2019s 33 employees \u201cin a more comprehensive unit\u201d and there was no contrary bargaining history. In other words, the first union petition at a non-union company automatically defines an appropriate unit.<\/p>\n

Extent of organization even trumps the small size of the employee contingent and the limited size of the geographic service area. Those factors carried the day in Red Hook<\/i> and Fidelity<\/i> but are no longer \u201ccontrolling\u201d or even \u201cdispositive.\u201d This decision means multidepartmental units, while still deemed \u201coptimal\u201d in the utilities industry<\/a>, will be quickly disregarded whenever any union seeks to represent a smaller or less comprehensive unit.<\/p>\n

Randall Warehouse<\/b><\/p>\n

This case was submitted on stipulated facts. A union representative with a camera in plain sight took pictures of employees and their vehicles while they left the plant and while other union representatives were distributing union flyers. The union never told the employees why it was taking these pictures. When one employee asked, he was given the ambiguous response that \u201cIt\u2019s for the union purpose, showing transactions that are taking place.\u201d Under directly applicable Board decisions in Pepsi-Cola Bottling Co. of Los Angeles<\/i>, 289 NLRB 736 (1988) and Mike Yurosek & Son, Inc.,<\/i> 292 NLRB 1074 (1989), union photographing of employees in the absence of a valid explanation is objectionable conduct requiring setting aside a union election victory. The Sheetmetal Workers won this February 3, 1995 election by a 40-to-32 vote. The Hearing Officer followed the precedents cited and recommended sustaining the employer\u2019s objections and overturning that union win.<\/p>\n

Originally, the Board accepted review in a pair of photographing cases. The other case, Flamingo Hilton-Reno, Inc<\/i>., involved employer photographing. However, on March 8, 1999, that case was settled leaving only Randall Warehouse and union photographing before the Board for decision. That was unfortunate because the ultimate union victory in Randall Warehouse<\/i> by a 4-to-1 vote (which included Member Brame) basically addresses only union photographing and leaves prior employer photographing cases alone.<\/p>\n

Overruling both Pepsi-Cola<\/i>, and the Hearing Officer, the Board held unions do not engage in objectionable conduct when they photograph the interactions between union representatives distributing literature outside an employer\u2019s plant and employees either accepting or refusing the union materials. The Board majority accepted the AFL-CIO and Teamster friend-of-the-court arguments that union photographing<\/a> by itself is perfectly legal and becomes objectionable only if accompanied by threats to the employees. For this reason, the Board did not overrule Mike Yurosek & Son, Inc.<\/i> There were clear threats in that case; a union representative told an anti-union activist that \u201cwe\u2019ve got it on film, we know who you guys are . . . after the union wins the election some of you may not be here.\u201d The combination of the photographing and this threat constitutes objectionable conduct even if the photographing by itself does not.<\/p>\n

This is not a blanket endorsement of union photographing. Where the camera is not aimed at employees who are given union literature or union campaign materials, the result could be different. Unions are interested in identifying potential supporters and, presumably, someone who takes union campaign materials instead of refusing them is a potential supporter. Very different considerations apply when unions are photographing employees honoring or refusing to honor union picket lines, and the Board majority expressed no opinion about union photographing in that situation.<\/p>\n

Overruling Pepsi-Cola<\/i> and sanctioning union photographing creates an obvious double standard. Employer photographing or videotaping of employees being handed campaign materials or otherwise engaging in protected activities is unlawful \u201cbecause it has a tendency to intimidate\u201d employees, F.W. Woolworth Co<\/i>., 310 NLRB 1197 (1993) (leaflets in front of store). Member Brame joined in the overruling of Pepsi-Cola<\/i> because he believed all pure photographing, union or employer, should be lawful. He would have gone further and overruled F.W. Woolworth Co.<\/i> as well.<\/p>\n

That will not happen as long as the current Board is in control. Chairman Truesdale and Members Fox and Liebman flatly stated it is not inequitable and inconsistent \u201cto permit unions to photograph employees being offered campaign literature, while barring the same conduct by employers.\u201d Indeed, the majority goes out of its way to identify two actions (home visits and pre-election polling) that are proper for unions but improper for employers under existing precedents.<\/p>\n

The rationale that spelled the end of Pepsi-Cola<\/i> was fairly simple. The Board majority said:<\/p>\n

We find no objective or principled basis for distinguishing between asking an employee to sign an authorization card and recording the employee\u2019s response in documentary form, on the one hand, and making a visual record of the employee\u2019s response through videotaping or photography on the other.<\/p>\n<\/blockquote>\n

Of course, authorization cards are usually offered together with a careful explanation of their purpose by the union organizer. Photographing is different. It creates a permanent record for the union\u2019s files of an employee refusing to accept union literature and, as now held in Randall Warehouse<\/i>, the union never has to explain why it is taking these photographs. Unions will take refuge in silence since, as Mike Yurosek shows, telling the truth (\u201cwe\u2019ve got it on film; we know who you guys are\u201d) constitutes objectionable conduct. Union photographing will truly be a return to silent movies.<\/p>\n

Mississippi Power<\/b><\/p>\n

This case, pending before the Board since March 1994, could be the most significant of the three. The employer generates, transmits and distributes electrical power throughout Western Mississippi. In 1993, the employer filed a unit clarification petition seeking to exclude its distribution dispatchers and systems dispatchers from a 50-year-old bargaining unit represented by the IBEW. The two dispatcher groups monitor local and long-distance electrical distribution, respectively. On September 30, 1993, the Regional Director for Region 15 (New Orleans) dismissed the employer\u2019s unit clarification petition, holding these dispatchers were not statutory supervisors because they did not exercise independent judgment. This ruling was contrary to Big Rivers Electrical Corp<\/i>., 266 NLRB 380 (1983), so the employer quickly filed a request for review with the Board. As noted, the case then languished before the Board for 5 years.<\/p>\n

The Board majority (Fox, Liebman and Truesdale), while acknowledging there were factual differences between this case and Big Rivers<\/i>, decided to overrule Big Rivers<\/i>. Thus, the Board is returning to its pre-1983 rule that these dispatchers are not supervisors under the Act. That earlier rule was soundly attacked by the reviewing courts so the Board must anticipate several more appeals court battles now that a judicially unpopular rule, after 14 years, has been revived.<\/p>\n

These dispatchers have critical jobs. They design and implement switching sequences to avoid power outages and direct employees in the proper sequences. They set work order priorities and determine which crews to call in for overtime or emergency work. They are the decision-makers on the scene when emergencies arise and crews are dispatched to restore power. They work evening hours when higher management is not available. The Board majority concedes all this. They hold that Big Rivers<\/i> and prior decisions over-reacted to the severe consequences that might flow from dispatcher mistakes. They state:<\/p>\n

We believe that the Board in Big Rivers<\/i>, and the courts in the cases leading to the Board\u2019s decision, may have been swayed by the complexity of the dispatchers\u2019 responsibilities and the adverse consequences to the well-being, safety and lives of the public and employees that might result from systems supervisors\u2019 (dispatchers herein) faculty decisions regarding switching sequences.<\/p>\n<\/blockquote>\n

This message is directed at the courts of appeal whose strong criticisms drove the 1983 Board to adopt the rule this case now abandons. Those appeals courts are much more respectful of precedents than the Board and will now have an opportunity to criticize the Board once again.<\/p>\n

The Board majority relies heavily on charge nurse cases. These nurses, according to the Board majority, at times must make life-or-death and other critical decisions based on their experience, expertise, know-how or formal training or education but are generally viewed (by the Board, anyway) as non-supervisors. The Board is looking ahead to the expected appeals court battles over its new dispatcher rules. It is obviously hoping to gain comfort from the several appeals courts that have upheld recent Board decisions that charge nurses are not statutory supervisors. This is very risky as there are several contrary charge nurse appeals court decisions and the current Supreme Court is by no means sympathetic to the Board\u2019s new supervisory rules.<\/p>\n

This decision encapsulates the Board\u2019s current approach to supervisory determinations<\/a>. The many directions given by dispatchers to their subordinates become \u201croutine\u201d and are said to involve no discretion or independent judgment because those rules are either all set down in writing somewhere or higher management makes the \u201creal, final\u201d decisions. It will take a Supreme Court decision to stop the Board\u2019s emasculation of Section 2(11) of the Act and its campaign to increase the number of non-supervisory employees who can be organized.<\/p>\n

These three decisions reveal union advocates controlled the current NLRB, at least in July 1999. These wholesale reversals of long-standing precedents place the Board on a collision course with the appeals courts, particularly in the dispatcher case. The appellate battles that surely lie ahead will write the next chapter of this saga.<\/p>\n

*article courtesy of Nixon Peabody LLP.<\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

An earlier Employment Law Alert article (May 1999) noted that Board Chairman John Truesdale planned to attack the Board\u2019s backlog by tackling several cases pending undecided before the Board for many months and, in some cases, many years. On July 26 …<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_categories":[6520,6532],"class_list":["post-37972","corporate","type-corporate","status-publish","hentry","corporate_categories-litigation-disputes","corporate_categories-litigation-disputes__other-litigation-disputes"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate\/37972","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=37972"}],"wp:term":[{"taxonomy":"corporate_categories","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_categories?post=37972"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}