The last Board decision of 2011 was on the surface unremarkable and easily overlooked in the outrage over Obama’s Board appointments on Jan. 3. However according to Lexology, there are powerful clues buried in 2 Sisters Food Group on what to expect from the NLRB in the coming year. (Spoiler alert: things can get much scarier than just elections in ten days.) The 2 Sisters decision itself was a no-brainer – the company was found to have illegally terminated a leader of the unionization effort. A finding of illegal termination is generally enough alone to overturn a close election. However the bulk of what Members Becker and Pearce wrote on 2 Sisters considered issues that had no bearing on their decision to overturn. And according to Lexology, both the inclusion of these extraneous issues in the UFCW’s complaint and the Board’s unwarranted attention to them serve as ominous signs for 2012. Becker (in what would be his parting shot as a Board member) first cited what he found problematic with the company’s out-dated employee handbook, specifically a rule that would discipline an employee for the “inability or unwillingness to work harmoniously with other employees.” This was found by Becker to be an unfair labor practice because “it was sufficiently imprecise that it could encompass any disagreement or conflict among employees, including those related to discussions and interactions protected by Section 7, and that employees could reasonably construe the rule to prohibit such activity.” Yes, you read that right, it would now appear against the law to require an employee get along well with others unless an employer is painfully specific about when and under what circumstances a cooperative attitude is required. Becker’s opinion also reasserts the threat that, under a wildly union-biased Board, an innocuous common phrase in an obsolete company handbook could be subverted by a union into a ULP of convenience. But it gets much worse. The UFCW also objected in its complaint to the employer holding mandatory captive audience meetings and boldly requested the law be immediately changed before a second election. While the Board did not give in to that request (yet) Member Becker seized the opportunity to write three pages on the subject, again with no bearing on the Board’s decision in the case. Becker wrote this of the 59-year-old rule that has stood unchallenged through six previous Democrat administrations: Board-supervised elections have been called the ‘crown jewel of the Board’s accomplishments’ under the Act . . .By continuing to permit employers to require that employees attend campaign meetings as a condition of continued employment, the Board does not simply tarnish that jewel, it fractures it. I would not continue down this long but fundamentally misguided path. The union also asked that a new election be held off company property, a request the Board also denied, but only after reasserting for five pages the Regional Director’s power to make that decision without ever mentioning the common sense long-standing rationale behind worksite elections:
While the existing empirical work on this subject is not definitive, it is persuasive and creates concern that holding representation elections on premises controlled by one party without the consent of all other parties is inconsistent with the Board’s obligation to insure that no party gains last minute advantage over the other.
