Nlra Case Notes

• Publication year: 2019
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

Board Holds That Election Petition Filed by Employer After Contract Formation—but Before Contract's Effective Date—Is Not Barred by Contract-Bar Doctrine.

Silvan Industries, 367 NLRB No. 28 (Oct. 26, 2018)

In a 3-1 decision, a Board majority ruled that the contract-bar doctrine—under which the Board generally will not direct elections among employees covered by a collective bargaining agreement—does not bar the processing of an employer's election petition to hold a union decertification election even after the parties have reached a collective bargaining agreement, as long as the petition is filed before the agreement's effective date.

The union was certified as the excusive bargaining representative of the employer's production and maintenance employees in October 2015. On October 13, 2016, the parties reached a tentative agreement for an initial contract effective beginning November 7, 2016. By October 15, the contract was ratified by the union's bargaining unit members, and the parties agreed to meet to execute the agreement on October 25, 2016. But on October 25, an employee provided the employer with a petition signed by a group of employees expressing opposition to union representation. That same day, the employer filed a petition for election (RM) with the Board, challenging whether the union continued to have majority support among employees and requesting to hold a decertification election. Later that day, the employer nonetheless executed the collective bargaining agreement with the union.

Citing Auciello Iron Works,¹ the Regional Director dismissed the employer's petition because it was filed after the union had accepted the employer's contract offer and the employer was therefore precluded from challenging the union's majority status. The Board majority reversed the dismissal, directed processing of the petition, and remanded the case to the Regional Director because the employer filed its petition before the contract took effect, and as such, there was no contract to bar the petition. Distinguishing Auciello Iron Works as a case involving employer withdrawal of recognition rather than an election petition, the Board majority relied instead on National Broadcasting Co.² which held that a rival union's decertification petition was not barred by a collective bargaining agreement that had been executed but not yet gone into effect.

In dissent, Member McFerran opined that Board precedent, policy, and the NLRA's goal of protecting stable collective-bargaining relationships support the proposition that once a contract is formed—irrespective of its effective date—the contract-bar doctrine precludes an employer from challenging the union's majority status. She cautioned that the majority's focus on a contract's effective date provided employers with "a strong incentive to seek delayed effective dates" so as "to increase the possibility that employee disaffection will come to fruition."

Board Rules That Employees' Picketing Had Unlawful Secondary Object

Preferred Bldg. Servs., 366 NLRB No. 159 (Aug. 28, 2018)

A unanimous NLRB panel ruled that employees lost the protection of the National Labor Relations Act by engaging in unlawful secondary picketing. Applying National Packing Co. v. NLRB,³ the Board ruled that when Section 8(a)(1) complaint allegations are premised on an employer's response to employee picketing, the allegations must be dismissed when the employees' picketing is unprotected.

The case arose from picketing by employees of Ortiz Janitorial Services (OJS), a janitorial subcontractor of Preferred Building Services (Preferred). In the fall of 2014, Preferred contracted with Harvest Properties (Harvest), a building management company, to clean a building located at 55 Hawthorne Street in San Francisco. Preferred then subcontracted the work to OJS. The administrative law judge concluded that OJS and Preferred jointly employed the janitorial employees working at...