Which precedents are likely to face challenge under reconstituted NLRB membership?
Issue:

For the first time in years, the National Labor Relations Board (NLRB) is at full-strength with five sitting members — at least until Member Schaumber’s term expires on August 27, 2010, leaving the NLRB with a 3-to-1 Democratic majority (the remaining Republican being Bryan Hayes, who was sworn in on June 29, 2010). Experts speculate that the new NLRB majority will issue more pro-labor decisions and will likely reverse some Bush-era precedent. Which NLRB decisions are likely to face challenge?
Answer:    

While the NLRB traditionally has been relegated to formal adjudication rather than administrative action and rulemaking, says Joseph C. Ragaglia of Morgan, Lewis & Bockius, the reconstituted Obama Board could break this trend and view itself as a reform-oriented body as opposed to a limited judicial entity. Some of the significant NLRB precedents that are likely to face challenge are:

“Salting” and campaigning

  • Toering Mfg. Co., 2006-07 CCH NLRB ¶17,403, 351 NLRB No. 18 (9/29/07), which held, 3-to-2, that an applicant in a “salting” case is protected only if genuinely interested in the job. The dissenters were Liebman and Walsh.
  • Oil Capitol Sheet Metal, Inc., 2006-07 CCH NLRB ¶17,335, 349 NLRB No. 118 (5/31/07), holding, 3-to-2, in a “salting” backpay case that the general counsel must prove that the “salt” would have worked during the period for which backpay is claimed. Again, Liebman and Walsh dissented.
  • The Register Guard, 2008-09 CCH NLRB ¶15,000, 351 NLRB No. 70 (12/16/07), another 3-to-2 decision with Liebman and Walsh dissenting. In this case the NLRB held that an employer lawfully maintained an e-mail policy barring non-business use, but allowing some personal use. The integrity of the policy was not destroyed by individual non-business use where the employer had not permitted non-business solicitation by other outside organizations.

Voluntary recognition and decertification

  • Dana Corp. & Metaldyne Corp., 2006-07 CCH NLRB ¶17,406, 351 NLRB No. 28 (9/29/07), holding, 3-to-2, that voluntary recognition of a union is not a bar to later decertification unless and until expiration of a 45-day period after the employer posts official NLRB notice of voluntary recognition to employees. Liebman and Walsh dissented in part.
  • Shaw’s Supermarkets, Inc., 350 NLRB No. 55 (8/10/07), a 2-to-1 decision holding that an employer lawfully withdrew recognition after year three of a five-year labor contract, where a majority of employees signed a petition disclaiming representation. Liebman dissented.

Union dues

  • Hacienda Resort Hotel & Casino, 2006-07 CCH NLRB ¶17,408, 351 NLRB No. 32 (9/29/07), which permits cessation of dues checkoff upon contract expiration, but with certain limitations. This was another 3-to-2 decision in which Liebman and Walsh dissented.

Procedures before the NLRB

  • BE&K Construction. Co., 351 NLRB No. 29 (9/29/07), which held, 3-to-2, that an employer who files a reasonably based lawsuit does not violate the NLRA regardless of the employer’s motivation. Liebman and Walsh were the dissenters.

Source:  "Is Your Company Ready? Essential Steps for Navigating the Latest Changes in Labor Legislation and the NLRB Appointments" presented by Joseph C. Ragaglia of Morgan, Lewis & Bockius at the SHRM Annual Conference in San Diego, CA, June 30, 2010.
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