Volume 18, Number 2
March 2001

LABOR AND EMPLOYMENT LAW

Drift and Division on the Clinton NLRB

By Jonathan P. Hiatt and Craig Becker

The title of this article is a misnomer. There was no Clinton National Labor Relations Board (NLRB). During the Clinton administration, appointments to the NLRB were the product of negotiation between the Democratic president and the Republican-controlled Senate. Thus, throughout this period, the board has been divided. During the last two years, when there have been five sitting board members, two have been former labor union lawyers, two have been former management lawyers, and the chair has been a neutral—either a career NLRB lawyer or an academic. But examination of the decisions of this divided NLRB are illuminating, for it reveals both a lack of consensus about the fundamental tenets of U.S. labor policy and the increasingly confined doctrinal terrain on which the conflict over U.S. labor policy is enacted.

The only clear trend that can be traced in the decisions of the Clinton NLRB is toward expanded coverage of the National Labor Relations Act (NLRA). The NLRB believes that the doors should be wide through which employees and employers can enter the processes created by the NLRA. It has also expressed that the NLRA’s definitions of protected employees and covered employers should be broad.

Expansive coverage is, however, itself equivocal without strong substantive guarantees and effective means of enforcement. In deciding cases that address how the processes created by the NLRA will function and what the protections of the NLRA will be, the NLRB has been deeply divided and mired in arguments of limited significance for workers and their unions. This essay focuses on the most important process created by the NLRA—the representation process.The petitioning process. Prior to filing the petition that initiates the representation process, a union must gather the evidence needed to demonstrate 30 percent support among employees in the unit. This has become a daunting barrier as across a wide variety of occupations employees no longer work together in a central workplace. Currently, an employer has no duty to disclose the identity or addresses of its employees until it provides a list of eligible voters’ names and addresses seven days after a decision and direction of election (this is after the union presents its showing of interest and, ordinarily, only 23 days before the election itself). Recognizing this new reality, the Clinton NLRB’s first general counsel authorized issuance of two complaints designed to allow the NLRB to consider whether an employer’s refusal to provide a union or an employee a list of such scattered employees prior to a decision and direction of election, and even prior to the filing of a petition, violates the NLRA. While one of these cases was settled, the other was tried and presented to the NLRB on exceptions to an administrative law judge (ALJ) decision rejecting the general counsel’s theory.

Technology Service Solutions involved customer service representatives who work out of their homes or vehicles and at customers’ facilities, yet never report to a central work site. They generally work alone and have no access to an employee directory. The NLRB reversed the ALJ’s grant of a motion to dismiss, but did not sustain the charge, and remanded for additional evidence, thereby leaving employers free to deny requests for lists. The decision left parties uncertain about the scope of the theory the NLRB suggested it would sustain.The pre-election hearing. If a union can find employees and gather the signatures needed for a showing of interest, it can initiate a representation case. The first step in such a case is scheduling a hearing. For decades, employers have used the pre-election hearing to delay elections and negotiate for a favorable election date. Others have questioned why employers are privy to a proceeding created to allow employees to choose whether to select an agent to bargain on their behalf. These fundamental questions are, however, obscured by the familiarity of the standard hearing procedures.

The NLRA requires a hearing only for the NLRB to determine that "a question of representation exists." Like any other adjudicative body, it has discretion to defer hearing evidence and deciding issues that may shortly be rendered moot. The statutory mandate of a hearing does not deprive the NLRB of discretion to conduct the hearing in an expeditious manner by deferring adjudication of issues that need not be resolved in order to determine that an election is necessary, and of those issues that may not need to be resolved at all after the election.Opportunity to campaign. While the NLRB is processing the representation petition, unions are attempting to convince employees of the advantages of collective bargaining, and employers are attempting to persuade employees to vote against union representation. Recognition of employers’ advantages should be the starting point for NLRB regulation of campaign conduct.

In traditional workplaces, "the right of union officials to discuss organization with employees," which the Supreme Court has recognized as implicit in employees’ right to organize, is subject to prohibition by the employer provided it is pursuant to a neutral rule. However, employers cannot discriminate against union organizing while allowing other forms of solicitation on their property. Employers’ authority to bar union organizers from their property exists even when it is open to the public. Further, employers’ broad authority to deny union organizers access to the work site gives them far greater opportunity to communicate with employees during a campaign than is enjoyed by unions. Coercion and persuasion. Perhaps employers’ greatest advantage over unions in campaigns, and the one most discordant with American ideals of fair play, is employers’ ability to compel employees to listen to antiunion speeches on pain of discharge. The NLRB has not questioned the legality of such plain coercion, assuming that employers are "privileged to conduct a captive audience meeting." Rather, it has addressed peripheral issues relating to such "captive audience" speeches and debated their limited regulation in footnotes.

Despite the fact that threatening employees with discharge if they refuse to listen to antiunion speech is clearly coercive and therefore outside the protection of both the statutory free-speech proviso and the First Amendment, the only existing regulation of such coercion is the prohibition of such captive audience speeches to "massed assemblies of employees" in the 24 hours prior to an election. In a footnote debate with Chairman Gould, Member Brame actually suggested that he would lift even this modest regulation of compelled attention to antiunion rhetoric on the extraordinary grounds that it had not been evenhandedly applied to unions. The core issue, however, is whether the NLRB will continue to turn a blind eye to the obvious fact that while a speech itself may be non-coercive, requiring employees to attend a mandatory meeting on pain of discharge plainly is coercive.The election. The unfairness of the unequal access to voters is most evident on the day of an election when the fact that the NLRB continues to hold most elections on an employer’s premises means that the employer can continue to campaign up to the time the employee gets in line to vote, while the union’s opportunity to persuade ends when the factory whistle blows and the employees enter the plant gate. The NLRB did not address the fundamental unfairness of holding elections on the property of one of the parties to the process. Rather, for unrelated reasons, it slightly expanded a narrow exception to the general rule by expanding regional directors’ discretion to conduct mail ballot instead of manual elections (which are ordinarily held at the workplace).

Not only does the employer own the election site under standard procedures, it also owns the time during which employees vote. The NLRB recognized that paying someone for their time while they vote was troublesome in exceptional cases but not in the typical case. In Kalin Construction Company, the NLRB found it was objectionable for an employer to change its payroll practice in order to hand employees two checks as they entered the polls along with a notice explaining that one check represented what they would take home if they selected the union and the other what would be deducted to pay their union dues. The NLRB adopted a per se rule "prohibit[ing] changes in the paycheck process, for the purpose of influencing the employees’ vote in the election," during the 24 hours before the opening of the polls and until the polls closed. The NLRB based its holding on the recognition that "the paycheck is a visible symbol of what the Supreme Court has termed ‘the economic dependence of the employees on their employer.’" Thus, when the employer uses its payroll process to influence voters, it uses "a tactic peculiarly within its control to gain an unfair advantage and obtain the last word." However, the same might be said of every election that takes place during work time in the workplace.

Jonathan P. Hiatt is general counsel and Craig Becker is associate general counsel to the AFL-CIO.

- This article is an abridged and edited version of one that originally appeared on page 103 of The Labor Lawyer, Summer 2000 (16:1).

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