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NLRB Applying Double Standard to Supervisor Conduct
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Written by Erin Johansson   
January 23, 2005

Board Finds Pro-Union Activity More Objectionable than Anti-Union Activity

The National Labor Relations Board (NLRB) has long held that it is legal for supervisors to vigorously campaign against union organizing efforts.  Even employers who force employees to attend anti-union meetings are acting lawfully.  Yet the Bush-appointed majority of the Board recently ruled that pro-union conduct by a supervisor was objectionable, coercive, and grounds for overturning a five-year-old union election victory.

In 1998, the employees of Harborside Healthcare, a nursing home in Beachwood, OH, sought to form a union with the Service Employees International Union (SEIU).  Robin Thomas was one of the Harborside employees who participated in the union campaign.  She told her co-workers about the benefits of joining a union and asked them to sign cards authorizing SEIU as their representative in collective bargaining.  Despite Harborside’s anti-union stance, the workers voted 49 to 36 in favor of union representation on October 1, 1998.  The company filed to overturn the results of the election with the NLRB, charging that Thomas was a supervisor and that her pro-union conduct during the organizing campaign coerced employees into voting for union representation.

 Supervisor or Employee?

NLRB causes confusion and delay. 
Read more…

In a unanimous decision, the Board denied Harborside’s appeal and certified the results of the election in 1999.  The Board members ruled that Thomas was a supervisor under the law, but that her conduct was not objectionable because she did not explicitly threaten or promise benefits to her co-workers.  Harborside appealed the ruling.  Rather than ruling on the case, a federal appeals court remanded the case back to the Board for further clarification in 2000.  On December 8, 2004 – after sitting on the case for four years – the board finally issued a 3 to 2 decision overturning the results of the election.1 

In its ruling, the Board majority determined that the pro-union position of one low-level supervisor was enough to taint the election, despite the fact Harborside ran an anti-union campaign.  Among the conduct they found objectionable were Thomas’ statements describing the benefits of forming a union for job security and the solicitation of signatures for a pro-union petition, the latter being an explicit reversal of a previous Board decision.  

 ‘Legal’ Anti-Union Coercion

67 percent of employers have supervisors hold weekly one-on-one meetings with employees in an effort to oppose union organizing.2

The dissenting members of the Board charged the majority with creating an "arbitrary double standard" in their treatment of pro vs. anti-union conduct.  The Board has long allowed employers to force employees to attend ‘captive audience’ meetings where they are often deluged with anti-union propaganda.  Yet the majority found it objectionable for Thomas to simply urge her co-workers to attend union meetings.  In their dissent, the minority argued, "Contrary to the majority’s view, the law does not apply more harshly to pro-union supervisors…than to anti-union supervisors…"
    
If this new standard were applied to anti-union conduct—the Board would ban much of what has become standard anti-union tactics used by employers to crush organizing efforts.  Is the Board turning a corner in the protection of workers’ rights, or turning a blind eye and exposing its own double standard?  Given the litany of anti-worker decisions coming from this Board, workers shouldn’t hold their breath.

 


  

SUPERVISOR OR EMPLOYEE?  Confusion & Delay from the NLRB

Perhaps the most disturbing part of this decision is that nobody, least of all the Board, seems to know whether or not certain employees are supervisors under the National Labor Relations Act (NLRA). Because supervisors are not able to organize and bargain under the NLRA, an ongoing debate has persisted over the interpretation of the law’s definition." There are over 50 cases pending at the Board, some for years, in which the sole issue holding up the case is the Board’s inability to decide if certain employees are supervisors.3  Yet the Board majority in the Harborside Healthcare case holds that an election result can now be overturned solely because union authorization cards were solicited by employees unaware or unsure of their supervisory status.  If the experts at the Board have been unable to resolve this issue for years, how can workers themselves have confidence about how they would be classified by the law and whether they should get involved in an organizing drive?


 

Endnotes

1. Decision and Order of the National Labor Relations Board.  Harborside Healthcare, Inc. and Service Employees International Union, Local 47, AFL-CIO.  Case 8-CA-30592, decided December 8, 2004.
2. Kate Bronfenbrenner, "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing." U.S. Trade Deficit Review Commission, Washington, DC (2000). Bronfenbrenner analyzed a random sample of more than 400 National Labor Relations Board certification union-election campaigns that took place in 1998 and 1999.
3. BNA Daily Labor Report, 2005 Labor Outlook.
 
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