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Despite some of the rhetoric that has been reported, the National Labor Relations Board’s recent decisions could be characterized as applying well-established standards and principles to the cases that have come before it. In contrast to the Clinton-era board, this board, under Chairman Robert J. Battista, has staked out no novel positions. Any argument that it is not evenhanded is diminished by the more than 20 cases decided by a three-member panel where the two Democratic appointees wrote the plurality opinion and a Republican appointee dissented. These cases are noteworthy because it is highly unusual for board members who are members of the same political party as the president to be in the minority on 2-1 panel decisions. The 10 most prominent Bush-era board decisions Here is a closer look at what this board has done, presented “David Letterman” style in the form of a top 10 list of Bush-era board decisions. None of these holdings can fairly be described as the board holding “for the first time in the history of the act,” or even a “reversal of a long-time well-established board precedent.” Instead, all of this board’s major decisions may be categorized into one or more of the following three categories: a return to pre-Clinton era board precedent; the mere following of existing board precedent; and the following of guidance from the federal circuit courts of appeal. 10. Jurisdiction asserted over tribal entities. In San Miguel Indian Bingo & Casino, 341 NLRB No. 138 (2004), the board decided to exercise jurisdiction over a large casino operated by an Indian tribe on tribal land that employed a large number of employees, most of whom were not members of the tribe. This decision, which expanded National Labor Relations Act (NLRA) coverage for workers, was in line with the dominant view of the federal courts that U.S. labor and employment laws generally apply to tribal enterprises whether they are on or off a reservation. 9. Disabled workers in a primarily rehabilitative relationship are not employees. The board held, in Brevard Achievement Center Inc., 342 NLRB No. 101 (2004), that disabled workers who are in a primarily rehabilitative relationship with their employers are not employees under the NLRA, even though the disabled employees worked the same hours, received the same wages and benefits and performed the same tasks under the same supervisor as the nondisabled employees. This decision followed existing board precedent for nearly half a century where the board has declined to assert jurisdiction over relationships, such as sheltered workshops or rehabilitation vocational programs, that are primarily rehabilitative in nature. 8. Work rules governing language are lawful. In Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004), the board held that work rules prohibiting “abusive and profane language,” “verbal, mental and physical abuse” and “harassment . . . in any way” were lawful. The board reasoned that an employer has a legitimate right to establish a civil and decent workplace and to protect itself from liability for workplace harassment by maintaining rules prohibiting conduct that would lead to liability. This decision followed the guidance from the U.S. Circuit Court for the District of Columbia in Adtranz ABB Daimler-Benz Transp. v. NLRB, 253 F.3d 19, 26 (2001), denying enforcement in pertinent part to 331 NLRB 291 (2000). According to Adtranz, “it is preposterous [to conclude] that employees are incapable of organizing a union or exercising their other statutory rights to use the NLRB without resort to abusive or threatening language.” 7. Partial lockouts in support of a legitimate bargaining position are lawful absent proof of anti-union motive. The board, in Midwest Generation, EME LLC, 343 NLRB No. 12 (2004), held that an employer did not violate the NLRA by locking out economic strikers who had remained on strike until it was over, while permitting nonstrikers and crossover employees who had returned to work during the strike to continue working. The board found that it was a legitimate business justification for the employer to exert additional economic pressure on those employees who continued to strike until the end of the union’s strike, as opposed to those employees who eschewed the strike weapon during the strike. Midwest Generation is consistent with Bali Blinds Midwest, 292 NLRB 243 (1988) and Laclede Gas Co., 187 NLRB 243 (1970). 6. No presumption that threats of plant closure have been disseminated. In Crown Bolt Inc., 343 NLRB No. 86 (2004), the board reversed Spring Industries, 332 NLRB 40 (2000), a decision adopting a presumption that an employer’s threat of plant closure had been disseminated among employees, and returned to a 1986 precedent, Kokomo Tube Co., 280 NLRB 357, which imposed on the objecting union the burden of proving dissemination of a threat. The board in Crown Bolt reasoned that there must be a connection between proved facts and inferred facts, and it was unfair to impose such a wide-ranging presumption that treated all threats the same, regardless of who made the threat and to whom it was originally stated. The ruling here is consistent with the 2d Circuit’s pronouncement in NLRB v. General Stencils Inc., 472 F.2d 170, 173 (1972). 5. A supervisor’s solicitation of union authorization cards may be objectionable. The board in Harborside Healthcare Inc., 343 NLRB No. 100 (2004), overruled three Clinton-era board decisions, which had held that the solicitation of union authorization cards by employees who are later determined to be supervisors is not objectionable if the request was neither threatening nor intimidating. The board found that, absent mitigating circumstances, supervisory solicitation of an authorization card has an inherent tendency to interfere with the employee’s freedom to choose whether to sign a card. This case was before the board on remand from the 6th Circuit, which had determined that the board had applied the wrong legal standard by requiring an explicit threat or promise to establish objectionable pro-union supervisory conduct. See Harborside Healthcare v. NLRB, 230 F.3d 206 (6th Cir. 2000). The board’s ruling represents a return to pre-Clinton era board precedent and follows the direction of the 6th Circuit. 4. No Weingarten right exists in nonunion workplaces. The board, in IBM Corp., 341 NLRB No. 148 (2004), held that employees who work in a nonunion workplace do not have the right to have a co-worker present at an investigatory interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline. This decision overruled Epilepsy Foundation of Northeast Ohio, 311 NLRB 676 (2000), enforced, 268 F.3d 1095 (D.C. Cir. 2001), which had extended to unrepresented employees a right to have a co-worker present during such interviews, and returned to board precedent under E.I. du Pont, 284 NLRB 627 (1988), which provided Weingarten rights only to unionized employees. In the 23 years since Weingarten, the board has now changed its position four times in considering whether employees in nonunion settings may invoke Weingarten. 3. Strike at a health care facility at a different time than contained in the required notice is unlawful. In Alexandria Clinic P.A., 339 NLRB 1262 (2003), petition for review denied, 406 F.3d 1020 (8th Cir. 2005), the board overruled an earlier board decision and returned to the literal interpretation that a labor union at a health-care facility, which is required to give 10 days’ written notice of the date and time it plans to begin a strike, violates the NLRA if it goes on strike at a different time, in that case four hours later. The board reasoned that the statutory language unambiguously precludes a unilateral extension of the start of a strike and that a contrary interpretation, which had allowed a late start, was inconsistent with the statutory language. Alexandria Clinic followed the guidance of the D.C. and 7th circuits. See Beverly Health & Rehabilitation Services v. NLRB, 312 F.3d 315, 320-321 (D.C. Cir. 2003), and NLRB v. Washington Heights-West Harlem-Inwood Mental Health Council, 897 F.2d 1238 (2d Cir. 1990). Reversal of ruling on graduate assistants 2. Graduate assistants: employees no more. The board in Brown University, 342 NLRB No. 42 (2004), reversed another Clinton-era board decision that had in turn overruled a long-standing NLRB precedent, this one regarding the “employee” status of graduate assistants. The board held that graduate assistants are not employees within the meaning of the NLRA, overruling New York University, 332 NLRB 1205 (2000), which had found four years earlier that graduate assistants were statutory employees, and returned to the board precedent of more than 25 years under which graduate assistance had not been regarded as employees. See Leland Stanford Jr. University, 214 NLRB 621 (1974). 1. Unit placement of contingent workers. The board in Oakwood Care Center, 343 NLRB No. 76 (2004), held that bargaining units combining employees solely employed by a user employer with employees jointly employed by the user employer and a supplier employer (e.g., employees supplied by a temporary employment agency) are appropriate only upon the consent of all parties. This decision overruled M.B. Sturgis, 331 NLRB 1298 (2000), in which the Clinton-era board applied a novel definition of the statutory phase “employer” for the purpose of deciding the case, and found that units combining jointly employed and solely employed employees were nevertheless single-employer units. The board in Oakwood Care observed that the policy implications of Sturgis were “problematic” because the bargaining structures contemplated in that decision gave rise to significant conflicts among the various employees and groups of employees participating in the process. Oakwood Care returned board law to the long-standing board precedent. Kenneth R. Dolin is a partner in the labor and employment practice group of Chicago’s Seyfarth Shaw. He can be reached at [email protected].

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