button Vol. 7
No. 2


Paid Family Leave
line NLRB Watch
line Violence Update
line Defined Contribution
line SSN Time Bombs
line Briefs

Braun Consulting News
News on Personnel, Labor Relations and Benefits

See our Archive Pages for Back Issues of Braun Consulting News!

button NLRB Watch.

  • The Past - 2002 Year in Review     (link)
  • The Future - 2003 Issues to Watch (link)
  • Summary                                           (link)

Out with the old, in with the new...
or rather, out with the new, in with the old.

That's the situation now with the NLRB.

On November 14, 2002 the Senate confirmed five presidential nominations, with the swearing-in completed on December 24, 2002.

The new Board members are: Robert J. Battista (Rep), Peter Schaumber (Rep), R. Alex Acosta (Rep), Dennis P. Walsh (Dem) and Wilma Liebman (Dem).

The NLRB now has three Republicans and two Democrats. Labor Leaders are claiming the Board has shifted to a "pro-management" majority and is likely to reverse some policies that were put in place under the Clinton-appointed Board (Clinton Board).

In this article we will cover some of the past activity of the NLRB, and make note of some issues that may be back in the news this coming year.

button The Past - 2002 Year in Review

The National Labor Relations Board issued 489 decisions during fiscal year 2002, which ended September 30. Of this total, 287 were unfair labor practice (C) cases, and 202 were representation (R) cases.

Under its FY 2002 Government Performance and Results Act (GPRA) goals, the Board attempted to issue all C cases pending for more than 20 months and all representation R cases pending more than 12 months. During FY 2002, the Board disposed of 106 GPRA C cases (leaving 93 pending), and 77 GPRA R cases (leaving 9 pending).

button The Future - 2003 Issues to Watch

Some of the issues that we will be watching for possible changes include the following:

    - Temporary employees and their union status
    - Any changes in standards involving union "salting" cases
    - Weingarten rights for non-union employees
    - Rights of employees to dump a union they no longer support


We first began covering this issue in the Winter 2000 Issue of our BCG Newsletter.

In an article titled "NLRB Allows Temps to Join Unions" we referenced a decision (M.B. Sturgis, 331 NLRB No.173 ) that allows many of the nation's 35 million temporary workers to join the same union that represents the regular non-temporary workers.

That decision essentially put those temporary workers in a position to bargain for medical benefits and other compensation - and if they didn't get it they could actually strike.

At that time only temporary workers who are supervised by company employees were eligible, and the worker would be allowed to bargain with both temp agency unions and those of their assignment company.

Now there is a new wrinkle.

In 2002 the Board issued a decision (Tree of Life, Inc. d/b/a Gourment Award Foods, Northeast). This decision held that a collective bargaining agreement, which had traditionally covered only regular employees of a wholesale food distributor, must now be applied to temporary seasonal employees supplied through an outside temporary staffing agency.

This decision may impact any employer with a union contract who uses the services of a temporary staffing agency to supply workers who do the same job as the "primary employer's" regular employees working under the contract.

This means that employers with collective bargaining agreements covering a regular workforce - but who use temporary agency employees to supplement the regular workforce - must now beware the potential hazards created by the Gourment case decision.

When the Clinton Board of old made these decisions they were overturning long-standing precedents. Since the issue of temporary employees is an important one we anticipate that it may be revisited by the new Board sometime in the future.

As we have reported over the Clinton years the Clinton Board overturned long standing precedent established by both Republican and Democrat majority Boards of old. Clinton's Board sent labor relations into unknown territory. The new Board is likely to restore predictability of prior long standing decisions.


The issue of Union "Salting" may be revisited again as the new Board takes up its workload this year.

In our Fall 2000 issue of this BCG Newsletter we presented an article titled "NLRB - New approach in "salting" cases", which reviewed the decision relating to "FES - A Division of Thermo Power". This case set the standards for reviewing "salting" cases - where a union organizer applies for employment with the objective of soliciting employees on behalf of a union.

On November 22, 2002 there was a "Decision and Order" By Members Liebman, Cowen, and Bartlett in a case involving Exterior Systems, Inc.
([338 NLRB No. 82] Exterior Systems, Inc., 4-CA-29852)

This decision changes the FES standards so that the General Counsel would have to show that an applicant actually intended to gain employment or had a genuine interest in gaining employment.

Only under the NLRA can a person apply for a job they really don't want, lie about why they want it. The "salt" has a true objective that is far from why they are being hired and when the NLRB looks at the situation the US Government (through the NLRB) declares such deceit as "quite normal and proper".

This needs a closer look. I wonder how the NLRB would look at an employer plant in a union where the plant was to report all about the union activities after getting a job with the union and being on the payroll of the employer at the same time. ---- Oh, yes that has been decided by the NLRB and you guessed it... if the employer "salts" the union it is against the law. But for the union to "salt" the employer is quite OK.

If you need help in preventing the "salting" of your workplace, just Contact Braun-BCG Here.


A change that we may look for from the new Board is concerning the "Weingarten principle".

In the decision of "Epilepsy Foundation of Northeast Ohio v. NLRB" No. 00-1332 (November 2001) the Board noted that "In Weingarten, the Supreme Court held that employees in a unionized workplace may request the presence of a union representative at an investigatory interview which the employee reasonably believes might result in disciplinary action."

However, the scope of protection that labor laws afford un-represented employees is one in which the Board has seesawed back and forth on during the last twenty years. It seems possible that the new Board may return to the long standing precedent which limits those rights to union employees only.

Remember that if you have an employee who asks you to have another employee present during discipline or discussions about wages, hours, or conditions - we suggest that you agree to permit that second employee to attend the meeting.

button Summary

We will watch developments regarding these issues and more as the latest decisions come down from the newly constituted Board.

The Clinton-Era of NLRB decisions slanted against the employer may be coming to an end soon.

Check back to our Website and you can find the latest developments.

Or better yet, sign up to our e-mail list and you can get our complete newsletter delivered directly to your e-mail box as soon as it is available.

If you need any assistance with any of these issues you can always send us any questions by following this link.

(Please note: some information in this article
was obtained through the Ross Runkel Newsletter)

3. Violence Update. Next Page

The Contents of this News Letter are intended for general information
and should not be construed as legal advise or opinion.
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