Union Bailout Update

The NLRB continues almost weekly to throw grit into the gears of American businesses. In March, General Counsel Richard Griffin sent a memo toNLRB regional directors directing them to cede discretion over numerous areas of labor law to his office. Among the cases Griffin wants to come across his desk are union withdrawal elections, at-will employer disputes, Beck cases and other controversial issues. Former NLRB board chairman Peter Schaumber characterizes Griffins move as a power grab, and explains that the intent of the memo “is to reverse legitimate, long-standing board precedent. The reversals are going to increase the power of organized labor and restrict the influence of employers.” Because the GC’s office is less bound by Board precedent, Griffin is in a position to shift federal labor policy to more union-favorable terms. In a May memorandum, Griffin asks the Board to review its current rule of permitting employers unilaterally to withdraw recognition from a union based on objective evidence that it has lost majority support, referred to as the Levitz Furniture framework. The move is obviously designed to make it even harder for employees to get rid of unions they no longer want – already an arduous process. Employer handbook rules continue to take a beating from the Board. When an NLRB administrative law judge upheld the firing of two employees at William Beaumont Hospital, the Board went beyond the ALJ’s findings to highlight two additional policy rules as illegal. In another handbook defeat, a Board ALJ applied Purple Communications in a case against Rio All-Suites Hotel in Las Vegas to strike down an email policy, based on one of ten restrictions of use. the item in question: “Computer resources may not be used to send chain letters or other forms of non-business information.” In a similar case, Valley Health System LLC, the Board again one-upped the ALJ on an employee behavior policy, ruling that the use of the term “offensive” behavior had to be taken in context, and in this case the use was in context of other phrases that were deemed a violation of Section 7 rights, and was thus also unacceptable. The one upside to the ruling was the Board pointing to an earlier decision (Palms Hotel & Casino) in which the Board approved the use of the term, providing some guidelines (at least for now) as to safe use of the language. The NLRB doesn’t get its way 100% of the time. In Alabama, a District Judge awarded a nursing home $46,015.60 in attorneys’ fees for fighting an NLRB injunction. The USW had filed an unfair labor practice against the owner of the facility when the owner decided to switch operators to one that was non-union, and the Board filed a Section 10(j) injunction. Judge Sharon Lovelace Blackburn of the U.S. District Court for the Northern District of Alabama, denied the injunction request back in December, and consequently awarded the operator the cost of defending itself, declaring that the NLRB’s position in the Section 10(j) litigation was not substantially justified. An appeals court also took the Board to task when the Board downplayed union threats against anti-union employees at a nursing care company during an organizing drive, overturning the certification of the union. The DC U.S. Circuit Court of Appeals noted, “We conclude that the Board abused its discretion here by finding that the threats did not create a ‘general atmosphere of fear and reprisal’ according to the Board’s own precedent.” OSHA is also getting in the act of adding to employer headaches by instituting a new injury reporting requirement. The data from the reports will be entered into a public database, providing the unions one more tool to use in corporate campaigns or organizing.