Board Applies Specialty Healthcare

In DPI Secuprint, Inc., 362 NLRB No. 172 (2015) the Board rejected a commercial printer’s challenge to a bargaining unit it contended was too narrow and constituted a “fractured unit.” In the decision, the Democrat-majority panel approved a bargaining unit of “hourly pre-press, digital press, offset bindery, and shipping and receiving employees.”

The printing company’s contention, that a group of hourly offset press employees should also be included was rejected by the  NLRB. The  Agency rejection occurred despite the employer’s presentation of evidence that the offset employees shared a “significant” community of interest with other employees included in the unit, such as common supervision, benefits, pay rates, along with being “functionally integrated” with the other bargaining unit employees.

However, the Board majority found that this substantial community of interest was NOT enough to demonstrate that the offset employees shared an “overwhelming” community of interest with others already included in the petitioned-for bargaining unit. The majority panel stated:

It is undisputed that the employees in the petitioned-for unit constitute an identifiable group and share a community of interest, and the employer has not carried its burden of proving that the offset press employees share an overwhelming community of interest [with the petitioned-for group].

This case demonstrates the nearly impossible task that employers face when urging that bargaining units be expanded.  The  union  herein  simply  had  no  support among the offset employees, and filed its petition to reflect the extent of its organizing efforts. The Republican Board members’ predictions of the problems associated with the approval of micro-bargaining units are coming all too true.

Predictably, the NLRB Invalidates Boeing Company’s Narrowly-Drawn Investigative Confidentiality Guidelines

Despite updating its confidentiality guidelines after an employee filed a complaint with the NLRB, the Board nevertheless found that Boeing’s updated policy, which only “recommended” that employees not discuss workplace investigations, was illegal. The Boeing Company, 362 NLRB No. 195 (2015). In dissent, Republican Board member Harry Johnson stated:

Fairly read, the revised notice would not reasonably be understood by employees as interfering with their Section 7 rights to discuss information regarding investigations with others. There is no mandate to refrain, either express or implicit; neither is there any suggestion that discipline could result from failing to follow the recommended course of action.

While no appeal has been filed to date, a request for review may be anticipated. It remains to be seen if the U.S. Circuit Courts will enforce this Board Order.

NLRB Wastes Little Time in Applying the New Dues Check Off Standard

In Lincoln Lutheran of Racine, 326 NLRB No. 188 (2015), the Board reversed a 53 year old precedent and ruled that an employer’s obligation to deduct union dues from employee paychecks outlives the expiration of a collective bargaining agreement (CBA).

In reversing the previous standard, the NLRB panel ruled that dues checkoff is akin to other terms and conditions of employment and therefore continues in place beyond the expiration   of   a   CBA   that   establishes   the   checkoff  arrangement. Only a newly negotiated CBA or a valid impasse that would permit unilateral action by the employer could change the dues checkoff provision. In other words, dues check-off is considered a “mandatory subject” of bargaining.

The dissent notes that the reversal of the earlier standard removes an economic weapon from employers during the negotiation process, and significantly changes the relative power of the parties at the bargaining table.

As pointed out in previous ELBs, this Democrat-controlled Board is not wed at all to precedent, especially where the precedent can be viewed as anti- union or anti-collective bargaining.

Labor Board Back in Front of Fifth Circuit in D. R. Horton Fight

In a case where the NLRB “doubled down” on its view that class action waivers are invalid under the NLRA under certain circumstances, Murphy Oil has appealed an adverse decision by the Board that its arbitration agreement barring class actions was unlawful. The Fifth Circuit Court of Appeals held oral argument on the case this month.

Sitting on a three judge panel at the Fifth Circuit, Judge Leslie Southwick, on the original D. R. Horton panel and author of that decision in 2013, was particularly harsh toward the Board during oral argument. When the NLRB refused to budge on the central issue of whether mandatory arbitration pacts with class waivers violated the NLRA, Judge Southwick took the offensive:

It just seems to me an abuse of companies, when you’ve [the Board] received an adverse decision in a circuit court, to pummel them . . . and make them litigate back to the Circuit that’s already decided in their favor.

Southwick noted that the NLRB hadn’t sought Supreme Court review and stated:

If the pattern continues as it has in the past, it’s the Board that needs to seek cert., not the employer.

The Bottom Line

It is clear that Murphy Oil is going to win the request for review before the Fifth Circuit. The panel has already said as much. The question is whether the Board will finally abandon its position or will it seek review in front of the U.S. Supreme Court. At some point, unless the Board starts to win some of D. R. Horton cases in front of circuit courts, the NLRB will be forced to seek certiorari if the public is going to respect its decisions.

This is a classic example of a federal agency bullying employers to toe the line and comply with an untenable NLRB position. The message to employers is to expect to spend “blood and money” in appealing the D.R. Horton administrative decision all the way to the Circuit Courts.