By Christian J. Rowley, Esq.

There is a potentially significant NLRB decision issued by the National Labor Relations Board on the eve of Member Craig Becker’s departure that appears to have slipped under the radar of many involved in labor management relations. The case involves two issues of significance about which we likely shall hear very soon from the new Obama Board: (1) whether or not holding NLRB elections on the Employer’s premises provides an unfair, or even impermissible, advantage to Employers; and (2) whether any mandatory group meeting required at any time prior to the 24 hour period constitutes impermissible coercion requiring a new election. In the 2 Sisters Food Group Inc. decision, the Board, or Member Becker, speak to each.

As for the situs of elections, 95% of all Board elections are held on the Employer’s premises. In a small number of cases where bargaining unit members are scattered or otherwise are unavailable for balloting at a central location, the election may be held off-site. In the 2 Sisters case, Members Pearce and Becker describe for the first time their view of the factors that they believe support off-site voting in the case of re-run elections. While the factors purport to apply only to re-run elections, they could be easily broadened or interpreted to justify off site elections all the time. At least some members of the Board appeared to be setting the stage to decide ultimately that all, or virtually all, elections must be held off-site.

The second proposition, breathtaking in its scope, is that any mandatory employer-led group meeting regarding unionization at any time violates the “laboratory conditions” pursuant to which NLRB elections are to be conducted. This argument is at odds with many decades of Board law under both Republican and Democratic administrations. However, Member Becker, writing alone and in a parting shot, sets forth a detailed, theoretical argument as to why current Board law is incorrect in tolerating Employer-compelled group meetings. Purporting to rely upon the language of Section 8c of the National Labor Relations Act, Member Becker argues that Section 8c only shields Employer speech from being an unfair labor practice, not from constituting objectionable conduct. In his view, requiring attendance at meetings where the employer intends to express its view about unionization, without more, is impermissibly coercive and objectionable. He then goes on to say in a footnote that he similarly would hold all mandatory one-on-one pre-election meetings objectionable. In other words, Member Becker is “setting the table” to make it unlawful for an employer to ever hold a mandatory pre-election meeting, either in a group or one-on-one setting.

When and how much the newly constituted NLRB will “dine at this table” is unclear.