Nlra Case Notes

• Citation: Vol. 29 No. 4
• Publication year: 2015
• Author: By Jeff Bosley and Colin Wells

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Affirms Recognition Bar Commences on First Day of Collective Bargaining

Americold Logistics, LLC, 362 NLRB No. 58 (Mar. 31, 2015)

In a split 2-1 decision, the Board reversed a Regional Director's decision to process a decertification petition, on the grounds that the petition was filed too soon after voluntary recognition of the union. In so doing, the Board clarified its holding in Lamons Gasket, 357 NLRB No. 72 (2011), that parties must wait at least six months, and no more than a year after the first bargaining session before challenging majority status. Chairman Pearce and Member Hirozawa joined in the majority decision, while Member Miscimarra wrote in dissent.

The case stems from a union's organizing drive during the first half of 2012. Following an election in favor of the union, the parties signed a recognition agreement for all warehouse employees on June 18, 2012. After some initial delays, the parties held their first bargaining meeting on October 9, 2012. The parties eventually came to an agreement and scheduled a ratification vote on June 29, 2013. However, a decertification petition was filed on June 28, 2013, one day before the ratification vote.

The Regional Director processed the petition, interpreting the Lamons Gasket rule as stating the recognition ban could not extend beyond one year from the date of recognition. Under this standard, one year and approximately ten days had elapsed since voluntary recognition. The Regional Director found that as a matter of law the petition could not be barred.

The Board reversed the Regional Director's decision and clarified that under the rule promulgated in Lamons Gasket, the reasonable period of time for bargaining before a union's majority status can be challenged is measured from the date the parties first meet to bargain, and can last up to one year from the date of the first session. The Board reasoned that "a union can only demonstrate its effectiveness in negotiations once bargaining has actually commenced."

Member Miscimarra argued in dissent that the majority's decision adopted an overly expansive interpretation of the recognition bar. He urged that the clock should start running on the recognition bar when the employer first recognizes the union. Even if the majority's approach was applied, though, he found that sufficient time had elapsed to process the petition. He noted that the point when the parties reached their new collective bargaining agreement, which occurred before the decertification petition was filed and within a year, would itself have been a reasonable time to allow a majority challenge.

D.C. Circuit Enforces NLRB Decision That Threats Made on Union's Private Facebook Page Did Not Violate Section 8(b)(1)(A) of the Act

Weigand v. NLRB, No. 14-1024, 2015 WL 1740081 (D.C. Cir. Apr. 17, 2015)

A three-member panel of the D.C. Circuit unanimously upheld a Board decision finding that threatening comments posted on a union's non-public Facebook page did not violate the National Labor Relations Act (Act). Finding no rational basis to overturn the Board's decision based on the private status of the page and the fact that the comments were not posted by union agents, the appellate panel did not reach the question of whether threatening comments on a public Internet page might violate section...