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NLRB Retroactively Applies Ruling to Pending Cases
Written by Erin Johansson   
June 22, 2005
Imagine the outrage if the Supreme Court retroactively applied a new fundraising ruling to elected officials, and politicians were removed from office even though their campaigns had raised money in a manner that was legal at the time. While such a ruling sounds preposterous for our country’s highest court, it would be perfectly acceptable under the U.S. labor law system. 

The National Labor Relations Board recently ruled to retroactively change what is considered objectionable conduct during a union representation election.  This ruling could end up overturning numerous elections in which workers voted to form unions, and sets a standard that falls short of any normal measure of democracy.1

In December 2004, a majority of the National Labor Relations Board (NLRB) reversed precedent in Harborside Healthcare and found, for the first time, that the mere solicitation of union authorization cards by a supervisor is sufficient to overturn the results of an election.2

On May 17, 2005, the Board ruled to retroactively apply this new standard to pending cases.3  To justify its ruling, the Board majority maintained there was no “manifest injustice” done to the parties involved, asserting the decision was merely a setback to the union, which had the opportunity to hold another election. 

Within days of this decision, the Board sent two cases back to a NLRB Regional Director to decide whether the pro-union conduct of the supervisors involved in the elections would now be considered objectionable.  Unbelievably, these two cases, Terry Machine and Madison Square Garden, had been pending at the Board for over four years. 

Did You Know?

Only 12.5% of U.S. workers have a union in their workplace,6 but 53% of U.S. workers would like one.7   

In Terry Machine, the workers voted for the union in 1999, and despite the employer’s objections, the previous Board certified the union in 2000.4 After the employer refused to recognize and bargain with the union, the case made its way back to the current Board.  And in Madison Square Garden, the Board sent a similar case back to the Regional NLRB based on an employer’s objection to an election held in 2000, where the workers also voted for a union.5 

By applying Harborside retroactively, the Board’s decision is clearly a manifest injustice to the employees involved in all three elections.  If the Board had resolved these cases years ago, the employees could have been negotiating their second union contract by now.  Instead, the workers who still remain with their employers may have to endure a second election campaign.  And these three cases may be just the tip of the iceberg.  As the dissenting member of the Board wrote, “the majority potentially subjects countless elections to unexpected invalidation because of conduct that was nonobjectionable when engaged in.”    

The Board’s decision also injects great uncertainty into current and future organizing efforts.   How can workers or union organizers feel confident that their successful efforts to form a union won’t be overturned in the future?  Will it be objectionable to wear a union button in five years?  Talking to a coworker about the union in a break room?  The American public would never tolerate such a standard allowing political elections to be overturned to be unseated, so why allow a double standard for democracy in the workplace?


1. For more on this topic, see: Gordon Lafer, “Free and Fair? How Labor Law Fails U.S. Democratic Election Standards," American Rights at Work, June 2005. 
2. Harborside Healthcare, Inc., 343 NLRB No. 100 (2004).
3. SNE Enterprises, Inc., 344 NLRB No. 81 (2005).
4. Terry Machine Co., Waterford, MI, 7 CA 43551, May 24, 2005.
5. Madison Square Garden, CT, LLC, Hartford, CT, 34 RC 1812, May 20, 2005.
6. Bureau of Labor Statistics, “Union Members in 2004.” Current Population Survey.
7. Peter D. Hart Research Associates, Feb. 2005.

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