Analyzing Recent Developments at the National Labor Relations Board
Dolin, Kenneth R., Labor Law Journal
Despite the rhetoric to the contrary, this author believes that a fair analysis of recent decisions by the National Labor Relations Board (Labor Board or Board) shows that the current Board has done no more than simply apply well established standards and principles to the cases that have come before it. The current Board has returned Board law to the mainstream and has corrected the excesses of the Clinton-era Board. During its tenure, the Clinton-era Board reversed over 40 Board precedents, including one Board precedent that had been continuously in effect for 50 years. It was the Clinton-era Board, therefore, and not the current Board, that "revisited a lot of cases that had been fairly well settled."
In contrast to the Clinton-era Board, the current Board, under Chairman Robert J. Battista, has staked out no novel positions. Put another way, none of the current Labor Board's holdings can fairly be described as a Board holding "for the first time in the history of the Act," or even a "reversal of a long-time well established Board precedent." Indeed, there have been at least 21 panel cases at the Board where the two Democratic appointees have written the plurality opinion and a Republican appointee has dissented. These case are typically highly fact-intensive cases, involving such issues as Wright Line/§8(a)(3) discrimination, employee misconduct, §8(a)(l) balancing of employer concerns and employee rights, mandatory subjects of bargaining, common situs picketing and the need for extraordinary remedies. These cases are noteworthy because it is highly unusual for Board members who are members of the same political party as the President to be in the minority on 2-1 panel decisions.
The current Board expanded NLRA coverage for workers when it exercised jurisdiction over a large casino operated by an Indian tribe on tribal land that employed a large number of employees, most of whom were not members of the tribe.1 This decision was in line with the dominant view of the federal courts that federal labor and employment laws generally apply to tribal enterprises whether they are on or off a reservation.
All of the current Board's major decisions can fairly be placed into one or more of the following three categories:
* a return to pre-Clinton-era Board precedent;
* the mere following of existing Board precedent; or
* following guidance from the federal circuit courts of appeals.
The following is a closer look at what has happened at the Board in the past year, as well as what developments are likely to occur over the next year.
UNIT PLACEMENT OF CONTINGENT WORKERS
In Oakwood Care Center,7 the Board held in a 3-2 decision that bargaining units combining employees solely employed by a user employer with employees jointly employed by the user employer and a supplier employer (e.g., employees supplied by a temporary employment agency) are appropriate only upon the consent of all parties. The decision overruled M. B. Sturgis,3 in which the Board applied a novel definition of the statutory phrase "employer" for the purpose of deciding the case, and found that units combining jointly employed and solely employed employees were nevertheless single employer units. The Board in Sturgis permitted "mixed" bargaining units-a combination of jointly employed and solely employed employees in a single bargaining unit-if the two groups had a "community of interest," even over the objections of both employers.
In Oakwood Care Center, the Board concluded that Sturgis was wrongly decided, overruled it, and returned to the longstanding pi~eSturgis precedent4 that such units constitute multiemployer units that are appropriate only upon the consent of all parties. As the Board noted, section 9(b) of the National Labor Relations Act does not authorize the Board to direct elections in units encompassing the employees of more than one employer. Chairman Battista and Members Schaumber and Meisburg found that solely employed employees, on the one hand, and jointly employed employees, on the other hand, are employees of different employers and that their inclusion in the same bargaining unit creates a multiemployer unit because one employee group has its terms set by the joint employer entity and the other employee group has its terms set by only one of the employers. …