IN BRIEF: NLRB Upholds Union's Right To "Banner"

Date: September 27, 2010

On August 27, 2010, the National Labor Relations Board (NLRB) ruled that a union practice of displaying large stationary banners at a secondary employer's business is not coercive and therefore does not violate the National Labor Relations Act (NLRA).

The NLRB decision affects three Arizona cases, in which union carpenters held 16-foot-long banners near two medical centers and a restaurant, to protest work being performed for the owners of the establishments by construction contractors that the union claimed paid substandard wages and benefits. Two of the banners declared "SHAME," while the third urged customers not to eat at the restaurant.

Under the NLRA, conduct that threatens, coerces or restrains a secondary employer not directly involved in a primary labor dispute is prohibited if the object of that conduct is to cause the secondary employer to cease doing business with the primary employer.

Under existing NLRB precedent, picketing that seeks a consumer boycott of a secondary employer is coercive and, therefore, unlawful. Stationary handbilling, where union representatives hand out written materials describing their dispute with the primary employer, with that same objection, is not. The issue the NLRB had to decide was whether stationary bannering was more like picketing or handbilling.

The NLRB majority, Chairman Liebman and Members Becker and Pearce (recent Obama appointees) found that the bannering was not coercive or in violation of the NLRA. Members Schaumber and Hayes (both Republican appointees) dissented from that decision. Member Schaumber's term has since expired, leaving one vacancy at the NLRB. (United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and Eliason and Knuth of Arizona, Inc., United Brotherhood of Carpenters and Joiners of American, Local Union No. 1506 and Northwest Medical Center, and United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 and RA Tempe Corporation, Case Nos. 28-CC-955, 28-CC-956 and 28-CC-957, decided August 27, 2010.)

NLRB Finds Union's Annual Renewal Requirement for Dues Objectors Unlawful

On August 27, 2010, the NLRB found that a union violated its duty of fair representation by requiring non-member dues objectors to restate their position every year despite their express desire to have the objection continue from year-to-year.

Under federal labor law, unions and employers may enter into agreements requiring employees represented by a union to pay dues or fees as a condition of employment. In 1988, the U.S. Supreme Court held in Communication Workers of America v. Beck that unions may charge members and non-members fees related to the union's collective bargaining and contract administration activities, but cannot require non-members to pay fees unrelated to collective bargaining (fees related to the union's political or other non-representational activities).

Non-members may object to paying any portion of dues that is not used for collective bargaining purposes. Unions must provide notice of this option and calculate the share of dues money used for collective bargaining purposes only.

In this case, an employee of a Florida-based company, represented by the International Association of Machinists and Aerospace Workers, objected to paying full dues. In 2003, he informed the union in writing that he wished his objection to continue indefinitely. The union responded that all dues objections had to be restated annually. When the employee failed to do so, he was charged the full monthly dues for 2004.

The issue presented to the Board was whether the union's requirement that the members' objections had to be restated each year was a breach of the union's duty of fair representation because it was "arbitrary, discriminatory or in bad faith." Chairman Liebman and Member Becker (both Democratic appointees) found that the annual renewal requirement was arbitrary, but not discriminatory or in bad faith. In a separate opinion, Members Schaumber and Hayes (Republican appointees) agreed that the rule was arbitrary, but they would also find it discriminatory. In dissent, Member Pearce found that the union had presented reasonable justifications for its requirement, making the practice valid. (International Association of Mechanists and Aerospace Workers, AFL-CIO; and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 2777 [L-3 Communications Vertex Aerospace LLC, Case 15-CB-5169, Decided August 27, 2010].)

EEOC Files Trio of New Cases Under Amended Americans With Disabilities Act

On September 9, 2010, the EEOC announced the filing of three separate lawsuits charging employers in Maryland, Georgia and Michigan with violations of the recently-amended Americans With Disabilities Act (ADA). All three cases were filed under the broader and simplified definition of a disability as contained in the ADA Amendments Act, which were signed into law by President Obama on September 25, 2008, and became effective January 1, 2009.

In Baltimore, the EEOC sued an Ellicott City, Maryland, surveying company, Fisher, Collins and Carter, for allegedly violating the ADA when it fired two employees who had diabetes and hypertension because of their illnesses. In its suit, the EEOC alleged that the Howard County firm discriminated against two employees when it discharged them shortly after requesting that they and all other employees respond to a questionnaire regarding their health conditions, medical issues and medications.

One employee had worked for the company for 15 years, starting as a rodman, and was a party chief at his termination. The other employee had been employed since 2000 as a rodman. The EEOC alleges that despite their successful performance throughout their careers, the company unlawfully fired the two employees on January 21, 2009.

In the suit, the EEOC is seeking a permanent injunction enjoining the company from engaging in any future employment practices that discriminate on the basis of a disability, the implementation of written policies to provide equal employment opportunities for qualified individuals with disabilities, monetary and injunctive relief, including back wages, compensatory and punitive damages for both employees, and changes in employment policies to provide equal employment opportunities for qualified individuals with disabilities. (EEOC v. Fisher, Collins and Carter, Case No. 10-CV-2453.).

In Georgia the EEOC sued the Eckerd Corporation, d/b/a Rite Aid, when a long-term employee with severe degenerative arthritis was denied the use of a stool she had used as a reasonable accommodation for six years. (EEOC v. Eckerd Corporation, d/b/a Rite Aid, Civil Action No. 1:10-CV-2816-JEC.)

In Michigan, the EEOC sued IPC Print Services, Inc., alleging that the employer discharged an employee with cancer who requested a temporary part-time schedule as an accommodation of his disability. According to the EEOC, the employee had been employed by IPC as a machinist for over ten years. The employee went on medical leave in 2008 in order to undergo chemotherapy.

The EEOC alleged that in January 2009, when the employee sought to continue working part-time while he completed his treatment, the company discharged him for exceeding the maximum hours of leave allowed under company policy. That decision, the EEOC contended, violated the company's obligation to reasonably accommodate the employee's disability. (EEOC v. IPC Print Services, Inc., Case No. 10-CV-886.)