Calendar year 2007 marks the fifth year of the Bush Administration's National Labor Relations Board ("Board"). During this period, the Bush Board issued 1,745 publicly reported decisions of which 35 were full, five-member decisions. Compared to the Clinton Board, which in 60 decisions reversed 1,181 years of prior case precedent, the Bush Board reversed 343 years of precedent in 21 decisions.
Over the five years, the Bush Board's decisions were enforced in whole, or in part, by the reviewing courts 87.7 percent of the time. In Fiscal Year 2007, the Board's decisions were enforced in whole, or in part, 97 percent of the time.
Board Chairman Battista's five year term expired December 16,2007, and Board Members Kirsanow's and Walsh's recess appointments expired December 31, 2007 with the sine die adjournment of the 110th Congress, 1st Session. Without a full, five-member Board, pending cases of significance will not issue. With the current two-Member Board, cases can issue only if both Republican Member Schaumber and Democrat Member liebman agree.
During the five years, former Chairman Battista (R) participated in 78.4% of all publicly reported decisions, Member liebman (D) 71.2%, Member Schaumber (R) 71.7%, former Member Walsh (D) 50.7%, and former Republican Members Acosta, Meisburg, and Kirsanow together only 31.7%. On three-member panel decisions, Battista agreed with liebman 62.2% of the time; Schaumber agreed with liebman 59.1%; and the panel was unanimous 55.2% of the time. Battista agreed with Walsh 61.6% of the time; Schaumber agreed with Walsh 61.2%, and the panel was unanimous 57.3%. There were 31 full Board decisions with Battista dissenting 9.7% of the time, liebman 64.5%, Schaumber 3.2%, Walsh 64.5%, and the remaining appointee group of three, S.2%.1
During 2007, organized labor continued its expensive media and political investment demanding labor law reform by promoting its Employee Free Choice Act ("EFCA") (H.R. 800; S. 1041) first introduced in both the House and Senate in 2003 with sponsors claiming "Workers' Rights Are Under Attack," "A Human Rights Crisis" and "Middle Class at Risk." In support of organized labor's proposed legislation, the House and Senate Labor Committees each held hearings, in February and March. The AFL-CIO filed two complaints in February and October with the International Labor Office decrying the Bush Board's assault on workers' rights by undermining fundamental human rights of freedom of association and collective bargaining, conducted a protest outside 20 Board offices and its Washington, D.C. headquarters and hosted a Global Organizing Summit and Congressional Forum accusing the United States of exporting a "lawless corporate culture," "toppling workers' rights worldwide." On August 2, 2007, Senators Durbin (D-IL), Brown (D-OH), Clinton (D-NY), and Obama (D-IL) introduced the Patriot Employers Act ("PEA") (S. 1945) providing a 1 percent tax credit for any U.S.-headquartered company that employs 50 or more employees, pays at least 60 percent of each employee's health care premiums, and is neutral in employee organizing drives.
The year ended with a joint House and Senate Hearing on December 13 publicly attacking the Bush Board's record-especially the Board's "massive assault on workers" when, in September, the last month of the federal government's 2007 fiscal year, it issued "61 mostly anti-worker decisions."2 In her written Congressional testimony, Member liebman (D) declared that "[t]he Board majority regularly has found that employee statutory rights must yield to countervailing business interests." liebman's remarks concluded noting:
At its heart, the [National Labor Relations] Act is...a human rights law.... The concept of fundamental rights at work is now part of the international legal order. Freedom of association and the freedom to engage in collective bargaining are recognized as core principles of a democracy... .at a time when union membership is at a historic low point, and the earnings gap growing, recent Board decisions ...threaten to undo Congressional assumptions about collective action as a means to redress economic inequality.3
EFCA, heralded as "essential to organizing rights in the entire world," would amend the National Labor Relations Act ("Act") to require employers to recognize unions based on signed cards, equate union solicited cards with Board conducted secret-ballot elections and mandate interest arbitration to force a first contract should the parties fail to reach agreement within 120 days of card check recognition. EFCA would also increase penalties for employer violations by doubling back pay penalties for employer violations and attaching a $20,000 civil penalty for each violation.4
2007 KEY DECISIONS
The major decisions of 2007 concern (1) card check/voluntary recognition, (2) regulation of employee use of employer's e-mail system, (3) union "salting," (4) mitigation of damages, (5) remedies, (6) retaliatory litigation, (7) strike replacements, (8) decertification and (9) union dues check off upon contract expiration.
1. Card check/Voluntary recognition
In its most substantively and politically significant decision of 2007, Dana Corp./Metaldyne Corp.,5 the Board split 3 to 2 along party lines, modified precedent regarding the "recognition-bar" doctrine and deliberately engrafted access to the secret ballot process to counter group pressure and overreaching commonplace in union card-signing campaigns.
In that case, both Dana and Metaldyne agreed to neutrality and card-check with the union and voluntarily recognized the union based on signed cards from an employee majority. Shortly thereafter, employees at both companies filed petitions to decertify the union. In each case, the petitions were initially rejected based on the Board's longstanding "recognition bar" doctrine announced in Keller Plastics Eastern, Inc.6 The doctrine affirms an employer's right to recognize a union without a secret-ballot election based on a showing of employee majority support, and bars challenges - decertification or rival union petition - to the union's representation "for a reasonable period," generally six months, to afford the parties time to bargain and reach a contract. Once a contract is executed, the Board's "contract bar" doctrine prohibits challenges for the length of the contract not to exceed three years.7
On review, the Republican Board majority modified the recognition-bar doctrine giving "proper effect" to both court and Board preferences for secret-ballot elections to protect employees' fundamental right of free choice. The majority noted:
* Card checks are less reliable because they lack the secrecy and procedural safeguards of an election, and employees may change their minds after signing cards and further exploring the issue, but they may hesitate publicly to withdraw their signed cards.
* [U]nlike votes cast in privacy by secret Board election ballots, card signings are public actions, susceptible to group pressure exerted at the moment of choice. [And,] the opportunity to file an unfair labor practice charge during the voluntary recognition process does not provide the same degree of protection against interference with employee free choice as does the Board electoral process, where conduct by unions, employers, and third parties may be found to be objectionable interference even if it does not rise to the level of an unfair labor practice.
* [UJnion card-solicitation campaigns have been accompanied by misinformation or a lack of information about employees' representational options.
* [A] Board election presents a clear picture of employee voter preference at a single moment. [C]ard signings take place over a protracted period of time. During such an extended period, employees can and do change their minds about union representation.
* There are no guarantees of comparable safeguards in the voluntary recognition process [to the Board's invalidation of] elections affected by improper electioneering tactics.
The Board majority announced that prospectively regardless of any card-check and/ or neutrality agreement preceding union recognition, no recognition bar to a decertification or rival union petition for election will be imposed following card-based voluntary recognition unless (1) employees receive notice of the employer's voluntary recognition and of their right to file a decertification petition or to support the filing of a rival union's election petition within 45 days of the notice and (2) 45 days pass from the date of the notice without the filing of a valid petition supported by 30 percent or more of the unit employees. The notice will be an official Board notice to be posted in the workplace. The Board majority also held that no contract bar to a decertification or rival union election petition will attach to any contract executed on or after voluntary recognition unless notice of voluntary recognition and the right to challenge is given and 45 days pass without the filing of a rival petition.
The dissent contended that the "ultimate object" of the Act is "industrial peace" through collective bargaining which, necessarily, requires union representation of employees. This argument ignores the 1947 Taft-Hartley amendments to the Act making employee free choice paramount and Board elections preferred. The dissent argues that "employers choose voluntary recognition... to avoid the time, expense, and disruption of an election." The real issue, however, is facilitating a first contract to obtain the contract bar and cement the union's presence at the workplace.
Notably, the majority made clear what the decision does not address: the legality of voluntary recognition agreements, the legality of card-check and/or neutrality agreements preceding recognition, employer post-recognition petitions challenging majority status, employer withdrawal of recognition, or whether the current "reasonable period" standard for the voluntary recognition bar should be modified or replaced by a time-specific standard. These unresolved issues are pending in other cases before the Board.
The Dana/Metaldyne decision, however true to the statute, is a direct shot at organized labor's legislative agenda and undoubtedly was the genesis for the unions' media storm and demand for the December 13 Congressional hearing. The decision dramatically weakens card-check. The battle for labor law reform is underway. The best corporate response is at ground zero - creating and maintaining a transparent deliberate and continuous employee involvement, communications and problem solving workplace culture.
2. Regulation of employee use of employer's e-mail system
The critical issues of an employer's right to regulate employee use of its e-mail system and to enforce its e-mail policy against unionrelated e-mails while permitting personal emails were answered on December 16, 2007, the last day of Board Chairman Battista's five-year term.
In Register Guard,8 the newspaper publisher maintained a policy governing employee use of the company's communications systems including e-mail. The policy noted that the systems were company property and were "not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations." While the employer was aware that employees sent and received personal e-mail messages, there was no evidence that e-mail was used to solicit support or participation in any outside cause or organization other than the company's annual, charitable United Way campaign.
In a case of first impression, the Republican Board majority held that, absent employer discrimination, employees have no statutory right to use an employer's e-mail system for nonwork-related purposes. The majority re lied on basic property rights to regulate and restrict employee use of company property. 9 The Board majority rejected the balancing of employees' statutory rights of self-organization with an employer's interest in maintaining discipline and requiring an employer's showing of special interests to justify a broad ban on employee non-work-related e-mail usage.10 The majority reasoned that the balancing of interests in Republic Aviation concerned faceto-face solicitation on nonworking time and the distribution of literature on nonworking time in nonwork areas, not the use of employer equipment or the right to every possible means of communication.11 The Board majority noted that despite the revolutionary nature of e-mail, face-to-face communications had not been eliminated necessitating the mandating of employee use of employer e-mail systems.
The Board's ruling on the issue of what constitutes discriminatory enforcement of company policy may well exceed in importance the matter of employee use of company property. The administrative law judge found that the company discriminatorily enforced its e-mail policy by denying employee use of union-related e-mails while allowing other nonwork-related e-mails such as jokes, baby announcements and party invitations.
On review, the Board majority analyzed the concept of discrimination and modified Board precedent regarding "discriminatory enforcement." The Board majority embraced the notion that while an employer may not discriminate against employee section 7 rights to organize and engage in concerted activities, discrimination involves "the unequal treatment of equals."12 To be unlawful, discrimination must be along section 7 lines, i.e., disparate treatment of activities or communications of a similar character because of their union or other section 7 protected status. The majority gave several examples: an employer violates the Act if it allows employees to use e-mail to solicit for one union but not another or if it permits solicitation by antiunion employees but not by pro-union employees. The Board noted that nothing prohibits an employer from "drawing a line" on a non-section 7 basis:
[A]n employer may draw a line between charitable solicitations and non-charitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between businessrelated use and non-business-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along section 7 lines. For example, a rule that permitted charitable solicitations but not non-charitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would not prohibit solicitations for Avon and the union.13
The Board majority noted that if an employer's motive for a particular line-drawing was antiunion, then such action would be unlawful.
Applying its new standard, the Board majority found that while Register Guard tolerated personal employee e-mails, there was no evidence that the employer allowed employees to use company e-mail to solicit employees to support a group or organization with the sole exception of the United Way campaign permitted under Board case law.14
In a biting dissent, the Democrat minority accused the majority of ignoring the impact of technological change on communications. The minority argued that under Republic Aviation, a rule banning all nonwork-related solicitation is presumptively unlawful absent special circumstances.15
3. Union "Salting"
"Salting" is a union tactic of sending union members to obtain employment at non-union workplaces to then organize the employees. Used extensively in the construction industry for more than 30 years, salting is now commonplace across all industries. Today, salting is used not only to organize but also to deliberately ensnare employers into committing unfair labor practices to create the perception that union representation is needed to counter employer abuse. In 2000, in FES,16 the Board set forth its standard for determining whether an employer discriminates based on union affiliation or activity in refusing to hire or consider for hire.
In Toering Electric Co.,17 the full Board majority modified the FES standard by defining an applicant entitled to the Act's protection as an individual genuinely interested in securing employment. The majority held that only applicants who are statutory employees as defined in section 2(3) are protected against hiring discrimination. Relying on a Clinton Board decision, the Board concluded that employee status requires "at least a rudimentary economic relationship, actual or anticipated, between employee and employer."18 The majority reasoned that submitting applications with no intention to seek work but to generate meritless unfair labor practice charges is not protected activity and reflects a fundamental conflict of interests with the employer.
Significantly, the Board majority placed the ultimate burden of proving the alleged discriminatee's genuine interest in seeking work on the General Counsel, not the employer. Proof requires the presence of an application for employment by the applicant or his/her authorized agent and that the application reflects a genuine interest in becoming employed by the employer.
The dissent would retain the FES discrimination standard without modification and the employer's burden of proof of the absence of discriminatory motive. The dissent accused the majority of creating a "legalized form of hiring discrimination." The majority replied , that its statutory role is undermined if it must litigate charges filed on behalf of "disingenuous applicants" and "becomes an involuntary foil for destructive partisan purposes."
In a related "salting" case, oil Capitol Sheet Metal,19 a full Board majority announced a new evidentiary standard for determining the duration of the back pay period for a "salt" discriminatee. The traditional remedy for a refusal to hire includes back pay and instatement. For years, the Board maintained a rebuttable presumption that the back pay period continues indefinitely from the date of discrimination until a valid offer of employment or reemployment was made.
Recognizing that salts are not the same as normal job applicants seeking employment for an indefinite duration, the Board majority declined to apply a presumption of indefinite employment and shifted the burden of proof to the discriminatee and General Counsel to present evidence that if hired, the salt/discriminatee would have worked for the backpay period claimed by the General Counsel's compliance specification. Such evidence might include the salt/discriminatee's personal circumstances, union salting policies and practices, and specific union plans towards the targeted employer.
The dissent accused the majority of "hostility to the practice of salting and to unions' increasingly successful use of salting as an organizing tool." Once again, organized labor will undoubtedly cite to oil Capitol as one more Bush Board attack on union organizing tactics necessitating the "faster, better, cheaper" cardcheck approach to organizing as proposed in the EFCA legislation.
4. Mitigation of damages
Once the Board determines an employee has suffered an employment loss resulting from an unfair labor practice, a back pay order issues to make the employee whole. In the subsequent compliance proceeding, the General Counsel bears the burden of proving the gross back pay due. The respondent then may raise an affirmative defense to reduce its liability contending that the discriminatee failed to mitigate damages by making a reasonable effort to find work.
For years, the respondent carried the burden of persuasion that the discriminatee failed to make a reasonable job search by proving (1) there were substantially equivalent jobs available within the relevant geographic area and (2) the discriminatee failed to apply for these jobs. However, in Sf. George Warehouse,20 the full Board majority shifted the burden of production concerning the discriminatee's reasonable efforts to seek work to the discriminatee and General Counsel. The Board majority justified the burden shifting because the discriminatee knows best what efforts he/ she made to seek work.
The dissent objected to what they contend is a further erosion of the Act's "terribly weak" back pay remedy. The Si. George Warehouse decision will be used to support organized labor's proposed civil penalties and doubling of back pay awards in the EFCA.
In a 2004 decision, Anheuser-Busch, Inc.,21 a Board panel decision held that the company unlawfully installed and used hidden video surveillance cameras , without giving notice to and bargaining with the union. The Board denied any make-whole remedy for the 16 employees discharged or suspended for inhaling/consuming unlawful drugs on company time and property in violation of company rules. The union appealed the decision. The court upheld the violation for failing to bargain and remanded the case to the Board to further address the remedy.
On remand, a majority of the full Board majority held that section 10(c) of the Act prohibits a remedy to any employee suspended or discharged for cause. Anheuser-Busch, Inc.22 That the discipline occurred based on misconduct that would not have been discovered but for the employer's own unlawful conduct does not, in the Board majority's view, change the result. The decision overruled two prior decisions to the contrary.
6. Retaliatory litigation
On remand after a decision by the U.S. Supreme Court,23 a full Board majority held that the filing and maintenance of a reasonably based lawsuit does not violate the Act regardless of whether the lawsuit is ongoing or completed and regardless of the motive for initiating the lawsuit.24 The Board majority reasoned that to hold a completed but unsuccessful lawsuit an unfair labor practice burdens the First Amendment right to petition the government for redress. The majority adopted the Supreme Court's articulation of "reasonable basis" as "objectively baseless" if "no reasonable litigant could realistically expect success on the merits."
The dissent argued that retaliatory lawsuits undermine the Act's goals. In response, the majority noted that "[e] ven under the standard announced today, a lawsuit that targets conduct protected by the Act can be condemned as an unfair labor practice if it lacks a reasonable basis and was brought with the requisite kind of retaliatory purpose... lawsuits both objectively and subjectively baseless...."
The decision in BEo1K should relieve employers of doubts about responding aggressively to union corporate campaigns.
7. Strike replacements
Economic strikers who unconditionally offer to return to work are entitled to immediate reinstatement unless the employer can show a legitimate and substantial business reason for refusing to do so.25 However, federal labor law gives employers the right to hire employees to replace economic strikers and to retain them once the strike ends if it can be proven that the employer and the replacements mutually understand that the replacements will not be discharged to allow the strikers to return.26
At issue in Jones Plastic & Engineering Co.,27 is whether strike replacements hired on an "at-will" basis nevertheless may be found to be "permanent" replacements. In another divided decision, the majority held that atwill employment does not address or conflict with whether a mutual understanding exists regarding job retention relative to returning economic strikers. The majority reasoned that the employer lawfully refused to reinstate the former strikers because it hired "permanent," albeit "at-will," replacement employees. The company gave replacement employees forms stating they were permanent replacements. Many of the forms stated the striker's name the person was hired to replace. The company informed the striking employees of the risk of permanent replacement and the company informed at least one replacement that he was a permanent employee.
In TruServ Corp.,28 the Board, 3-2, held that a decertification petition filed after the occurrence of an alleged employer unfair labor practice but before the settlement of the charges should not be dismissed where there has been no finding or admission that the employer actually engaged in or committed the allegedly wrongful conduct. In reaching the decision, the majority overruled prior precedent in Douglas-Randall, Inc.,29 and its progeny and returned to prior doctrine.30 The majority reasoned that absent a finding of a violation of the Act or an admission, there is no basis for dismissing a decertification petition based on
a settlement of alleged but unproven unfair labor practices. To do otherwise, according to the majority, would compromise employee rights under section 7 of the Act.
The majority noted that the same result would be reached even if the post-petition settlement includes a contract reached between the parties. However, a decertification petition may not be processed if the settlement is executed prior to the filing of the petition, the Regional Director finds the petition was instigated by the employer or the showing of interest in support of the petition was solicited by the employer, or the settlement includes an agreement by the decertification petitioner to withdraw the petition.
The dissent argued in favor of the Clinton Board's Douglas-Randall decision and its progeny as having struck a proper balance between establishing and maintaining a stable collective bargaining relationship and employees' freedom of choice.
This decision, although helpful, will likely be met with a union's resistance to a settlement agreement despite a Regional Director's discretion to accept a unilateral settlement in many cases.
9. Dues check off upon contract expiration
In Hacienda hotel, Inc.,31 on remand from the Ninth Circuit, the Board revisited the issue of an employer's unilateral cessation of union dues check off upon expiration of the parties' collective-bargaining agreement. A full Board majority held that the employer did not violate the Act by unilaterally ceasing dues check off once the parties' agreement expired where the collective agreement contained explicit language limiting the dues-check off obligation to the duration of the contract. In its original decision, a full Board relied upon well-established precedent that an employer's obligation to continue dues check off expires with the contract creating the obligation.32
Relying on NLRB v. Katz,33 the dissent argued that an employer violates its duty to bargain if, without bargaining to impasse, it unilaterally changes an existing term or condition of employment. The Board majority responded that while Katz stands for the proposition that while most contractually established terms and conditions of employment are mandatory subjects and cannot be changed unilaterally upon contract expiration, in this case, the contract language specifically linked dues check off to contract duration. Therefore, the union expressly waived any right to the continuation of check off following contract expiration.
In a separate concurrence, Board Chairman Battista argues that despite the contract's express language, dues check off should be considered among the Katz exceptions which do not survive contract expiration: no-strike clause and the correlative arbitration clause. He contended that an employer should not be required to continue dues check off assistance to a union at a time, following contract expiration, when the parties are engaged in a bargaining dispute with the union. In other words, discontinuing check off upon contract expiration is a form of economic weaponry to spur agreement on a new contract.
Given the contract language/waiver theory of the majority opinion, employers should negotiate the specific contract right to unilaterally cease dues check off following contract expiration at the employer's discretion.
PENDING caseS OF SIGNIFICANCE
Dana Corp.34 challenges whether under Board precedent,35 an employer and a union can lawfully negotiate and reach an agreement or "understanding" regarding terms and conditions to be embodied in a future collective bargaining agreement if and when a majority of employees designate or select the union to be their exclusive bargaining representative. Such pre-recognition bargaining is the inducement for the employer's agreement to neutrality and/or card check in lieu of a Boardconducted secret ballot election.36
Bannering, inflatable rats, signal picketing and secondary boycotts
Eliason & Knuth of Arizona, Inc.,37 presents the issues of whether union bannering accompanied by handbilling and banner verbiage falsely naming a neutral employer implying it was involved in a primary labor dispute with the union constitute threats, coercion or restraint and unlawful secondary picketing to cease doing business with the primary employer. The union contends that bannering is not confrontational picketing and is entitled to the same protection as mere handbilling and protection of the First Amendment. The case challenges the extension of DeBartolo Corp. v. Florida Building & Constr. Trades Council (DeBartolo II),3S to bannering and inflatable rats/objects.
Neutrality and card check agreements as present demands for recognition
Farmer Joe's Marketplace,39 raises the issue of whether a union's request that an employer sign a neutrality/card check agreement while, at the same time, the union distributes handbills claiming it represents a majority of employees amounts to a "present demand for recognition" raising a question concerning representation justifying the employer's request for an election. The case would re-examine and call into question prior Clinton Board precedents, New Otani hotel and Garden,40 and Rapera, Inc.41
Off-duty employee access to premises of another employer
New York New York hotel & Casino,42 orally argued on November 9, 2007, raises the issue of whether employees of a restaurant employer on the premises of a major hotel and casino may exercise their statutory right to organize by handbilling restaurant customers on their nonwork time in nonwork areas on hotel/casino property, i.e., whether a contractor's employees have the same rights as the property owner's employees. The case involves the balancing of the statutory right to organize with a thirdparty's property rights. On remand from the court of appeals, the case calls into question prior Clinton Board decisions in the case.43
The decision in BE&K should relieve employers of doubts about responding aggressively to union corporate campaigns.
The Dana/Metaldyne decision dramatically weakens card-check. The battle for labor law reform is underway. The best corporate response is at ground zero - creating and maintaining a transparent deliberate and continuous employee involvement, communications and problem solving workplace culture.
The Board's ruling in Register Guard on the issue of what constitutes discriminatory enforcement of company policy may well exceed in importance the matter of employee use of company property.
1 Figures compiled and maintained by the author based on publicly reported decisions of the National Labor Relations Board.
2 Sholnn Freeman, Labor Board Under Attack, N.Y. TIMES, Dec. 14, 2007, at DOl. The hearing testimony of Chairman Battista and Member liebman is available on the Board's website at www.nlrb.gov.
3 Member liebman's remarks are available on the Board's website at www.nlrb.gov.
4 H.R. REP. No. 110-23 (2007), Employee Free Choice Act of 2007 (H.R. 800), (see page 51 for Minority perspective and p. 54 for employers' perspective). The report is available at http://frwebgate.access. gpo.gov/cgi-bin/getdoc. cgi?dbname=110_cong_ reports&docid=f:hr023.110. pdf. Forthe author's perspective, see http://www.fedsoc.org/docLib/20070427_ RaudabaughPaperEFCA. pdf.
5 351 NLRB No. 28 (September 29, 2007).
6 157 NLRB 583 (1966).
7 See Amicus brief of the Members of the U.S. House of Representatives in another case involving Dana, Dana Corp., case No. 7-CA-46965 (ALJD April 11, 2005), available on the Board's website at www.nlrb.gov.
8 351 NLRB No. 70 (Dec. 16, 2007).
9 See Union Carbide Corp. v. NLRB, 714 F. 2d 657 (6th Cir. 1983).
10 See Republic Aviation v. NLRB, 324 U.S. 793 (1945).
11 See NLRB v. United Steelworkers (Nutone), 357 U.S. 357 (1958).
12 See Guardian Industries, 313 NLRB 1275 (1994), enf. denied 49 F. 3d 317 (7th Cir. 1995).
13 351 NLRB No. 70 at 9.
14 See Mammary Mfg. Corp., 265 NLRB 57 (1982).
15 Kris Mäher, Union Use of Company Email is Limited, WALL ST. J., Dec. 22, 2007. The parties' briefs and amicus briefs are available on the Board's website at www. nlrb.gov.
16 331 NLRB 9 (2000), enf'd. 301 F. 3d 83 (3d Cir. 2002).
17 351 NLRB No. 18 (September 29, 2007).
18 WBAI Pacifica Fud.,328 NLRB 1273, 1274 (1999).
19 349 NLRB No. 118 (May 31, 2007).
20 351 NLRB No. 42 (2007).
21 342 NLRB 560 (2004).
22 351 NLRB No. 40 (September 29, 2007).
23 BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002).
24 BE & K Constr. Co., 351 NLRB No. 29 (September 29, 2007).
25 NLRB v. Fleetwood Trailer Co., 389 U.S. 375 (1967).
26 Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
27 351 NLRB No. 11 (September 27, 2007).
28 349 NLRB No. 23 (January 31, 2007).
29 320 NLRB 431 (1995).
30 Passavant Health Care, 278 NLRB 483 (1986).
31 351 NLRB No. 32 (September 29, 2007).
32 Bethlehem Steel Co., 136 NLRB 1500 (1962).
33 369 U.S. 736 (1962).
34 Case No. 7-CA-46965 (AUD April 11, 2005).
35 Majestic Weaving, 147 NLRB 859 (1964).
36 See Amicus brief of the Members of the U.S. House of Representatives, supra note 7.
37 Case No. 28-CC-937 (ALJD May 9, 2003).
38 485 U.S. 568 (1988).
39 Case Nos. 32-RM-805 and 32-RM-806 (RDD August 3, 2007).
40 331 NLRB 1078 (2000).
41 333 NLRB 1287 (2001).
42 Case No. 28-CA-14519.
43 See New York New York hotel & Casino, 334 NLRB 762 (2001) and 334 NLRB 772 (2001).
John Raudabaugh is a Partner and Chair of the U.S. Labor and Employee Relations Practice at Baker & Mckenzie, LLP, Chicago, IL. He was a member of the National Labor Relations Board from 19901993.…