Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

In UBC, the full five-member Board -- which split along party lines -- held that a labor union’s use of stationary banners outside of the business establishment of a “secondary,” or neutral, employer does not violate the secondary boycott provisions of Section 8 of the National Labor Relations Act.  That Section makes it an unfair labor practice for a union to “threaten, coerce or restrain” a neutral employer if the union’s object is to force the neutral employer to cease doing business with another “primary” employer with whom the union has a labor dispute.  In UBC, the General Counsel pressed ULP charges against the Carpenters’ Union for setting up banners outside the premises of several neutral employers to protest their doing business with a group of construction firms with whom the Carpenters had a primary labor dispute.  At least some of the banners suggested that the Union had a dispute directly with the targeted neutral employers, indicating that the object of the Union’s conduct was indeed to force the neutrals to cease doing business with the primary employers in the case.  The parties however stipulated that the Union did not otherwise engage in picketing, patrolling or disruptive conduct, and as a result, the facts presented the Board with a perfect “test case” regarding the legality of union bannering activity directed at a secondary employer.
 
Departing from past Board cases broadly defining “picketing” under Section 8 of the Act, the UBC majority held that the Union’s conduct “lacked the confrontational aspect necessary to a finding of picketing proscribed as coercion or restraint within the meaning of Section 8[].”  The majority then announced a new standard for determining the lawfulness of non-picketing conduct directed at secondary employers:  secondary activity that falls short of picketing will violate Section 8 only if it “directly cause[s], or could reasonably be expected to directly cause, disruption of the secondary’s operations.”  In reaching this new and extremely narrow standard, the UBC majority noted that its holding was necessary in order to comply with the “Constitutional Avoidance” doctrine, which requires that statutes be construed in a manner that avoids conflict with the U.S. Constitution.  The UBC majority ruled that holding a banner is akin to “speech,” or at least is expressive conduct, and that to outlaw such activity would bring Section 8 of the Act directly into conflict with the First Amendment. 
 
Members Schaumber and Hayes issued a vigorous dissent “compelled by a serious concern that [the majority’s] standard will assuredly foster precisely the evil of secondary boycott activity and expanded industrial conflict that Congress intended to restrict by enacting [Section 8].”

It is difficult to predict the ultimate impact of the UBC decision.  In one sense, it is not an overly controversial decision because the facts of the case indicated that the Union’s conduct was limited to the peaceful display of stationary banners, without patrolling, picketing, name calling or other disruptive conduct.  However, the Democratic majority seized on the opportunity to announce their creation of a test that may have a much wider application.  Now, unions are likely to argue that they are free to engage in any type of conduct -- perhaps even picketing -- as long as they carry it out in a manner that does not “directly cause” disruptions to the secondary employer’s business.  In this regard, the dissent’s concerns are well taken.  We will be watching closely to see how this significant case plays out in the labor arena going forward.

The recent revisions could signal an increased focus on several particular topics.  For example, a number of the revisions address issues relating to undocumented witnesses, bilingual or non-English speaking witnesses, and posting of notices in languages other than English.  These provisions likely highlight an increased focus on workplaces with high concentrations of workers from other countries.  Significantly, investigators and field agents are told to inform undocumented witnesses that the NLRB is not associated with the U.S. Immigration and Customs Enforcement, but that they cannot guarantee that action will not be taken against the witness due to immigration status. 

Several of the revisions relate to the issuance of investigative subpoenas and procedures for opposing petitions to revoke subpoenas, including a new section on recovery of attorneys’ fees and costs in subpoena enforcement proceedings.  One section adds as considerations for issuing a subpoena “the possible derivative liability of additional parties” and the possible need “to obtain a protective order or other pendente lite relief.”  Another section clarifies language regarding notice to attorneys, emphasizing that the agency is not required to notify a party or its counsel if the agency subpoenas a witness who is not a supervisor or agent of the party.  This may forebode an increased emphasis on the use of subpoenas in Board investigations and proceedings.  The Regional Director has broad discretion to issue pre-complaint investigative subpoenas whenever evidence cannot be obtained by reasonable voluntary means.

Other sections with revisions include guidance on procedures when attorney misconduct is alleged in agency proceedings, guidance on introducing evidence regarding the appropriateness of particular remedies, and guidance on processing representation petitions that are blocked by ULP charges that are otherwise appropriate for deferral to grievance and arbitration.  Significantly, even if such a ULP charge is appropriate for deferral, the Manual states that Regional Offices should proceed with pre-complaint investigations and reach determinations on the merits (but not proceed to a complaint), so as to unblock the representation case.  In addition, the revised Manual also contains a new section with guidance on alternative dispute resolution of cases pending before the Board.  These changes might suggest a heightened aggressiveness on the part of the agency to pursue enforcement and obtain settlements in a more efficient manner.

Although to some extent the revisions to the Manual might simply reflect the need to update procedures in light of issues encountered over the past several years, they also constitute tangible evidence that the NLRB is taking steps to improve its enforcement procedures so they may be put to better use.