Indiana Law Review


Recent NLRB Developments

David L. Swider*

I. Introduction

During the past year,' the National Labor Relations Board ("Board"

or "NLRB") has issued a number of decisions that represent marked
changes in Board interpretation of the National Labor Relations Act.^

Because members of the NLRB are appointed by the President of the
United States,^ and because the NLRB's interpretations of the Act are
to be upheld by reviewing courts so long as they are reasonable/ the poten-

tial is great for a given Board to have a substantial impact on labor law.

The current Board, led particularly by Chairman Donald Dotson, whom
President Reagan appointed in 1984, has effected a number of significant

changes. These changes have been heralded by some^ and lamented by

others,^ but are of undeniable importance to all who advise employers,
unions, or employees of their rights under the National Labor Relations

Act.

This Article will survey those Board decisions from the past year that

mark significant departures from prior Board policy. Also included will

be discussion of pertinent United States Supreme Court and Seventh Circuit

Court of Appeals^ decisions.

IL Concerted Activity

Section seven of the NLRA provides in pertinent part:

Employees shall have the right to self-organization, to form, join,

or assist labor organizations, to bargain collectively through

*Partner, Sommer & Barnard, Indianapolis. B.S., Indiana University, 1975; J.D.,
Indiana University School of Law—Indianapolis, 1978. The author wishes to extend his
appreciation to Debra D. McVicker for her invaluable assistance in the preparation of this

Article.

'The Survey period extends from June, 1984 through May, 1985.
'29 U.S.C. §§ 141-187 (1982).

^29 U.S.C. § 153 (1982). For an empirical study of the ramifications of political

appointments to the Board, see Cooke and Gautschi, Political Bias in NLRB Unfair Labor
Practice Decisions, 35 Indus. & Lab. Rel. Rev. 539 (1982).

*See, e.g.. Pattern Makers' League v. NLRB, 105 S. Ct. 3064, 3075 (1985).
'See, e.g., Coupe & Murphy, NLRB Strike Rulings Likely to Weaken Union's Power,

L.A. Daily J., Aug. 20, 1984, at 4, col. 3.

''See, e.g., Simon, Has There Been a Shift In the NLRB's Policy?, 5 Nat'l L.J.
17, at 5, col. 1 (Jan. 3, 1983).

It should be noted, of course, that given the "race to the circuits" phenomenon,

decisions from other circuits may be of major significance as well.

241



242 INDIANA LAW REVIEW [Vol. 19:241

representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the right to refrain

from any or all of such activities. . . /

Section 8(a)(1) of the Act makes it an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees" in the exer-

cise of rights guaranteed under section seven.' One of the recurring prob-
lems confronting the NLRB has been the determination of what constitutes
"concerted activities" under section seven, and what therefore enjoys the

protection of section 8(a)(1).

A. Meyers Industries

On January 6, 1984, the Board rendered a definition of "concerted
activities" that has had a far-reaching impact on subsequent Board deci-

sions. In Meyers Industries, ^° the Board adopted a restrictive view of con-

certed activity and, in so doing, overruled Alleluia Cushion^ ^ and its nine

years of progeny.'^ The employer in Meyers had discharged an employee

because of his safety complaints and his refusal to drive an unsafe truck

after reporting its condition to state safety authorities. Rather than follow

the Alleluia presumption that safety concerns are necessarily of interest

to and shared by all others within a particular work force, so that even

individual action in furtherance of such objectives must be considered con-

certed, the Meyers Board purported to resurrect a prior standard of con-

certed activity. The essence of this standard lay in "employee interaction

in support of a common goal."'^ This objective notion of employee "in-
teraction," as subsumed in the new test enunciated in Meyers, does not
consider an activity concerted unless it is "engaged in with or on the

authority of other employees, and not solely by and on behalf of the

employee himself. ""•

Significantly, the Court of Appeals for the District of Columbia denied

enforcement of the Board's order in Meyers,^^ finding that the Board had

"misconstrued the bounds of the law" by interpreting concerted activity

*29 U.S.C. § 157 (1982).

'Id. § 158(a)(1).

'"268 N.L.R.B. 493 (1984), enforcement denied sub nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir.), cert, denied, 54 U.S.L.W. 3310 (U.S. Nov. 4, 1985) (No. 85-463). Although

Meyers Industries is technically outside the Survey period, a discussion of that decision is

essential for understanding subsequent developments.

"Alleluia Cushion Co., 221 N.L.R.B. 999 (1975).

''See, e.g., Pink Moody, Inc., 237 N.L.R.B. 39 (1978).
'^268 N.L.R.B. at 494 (citing Traylor-Pamco, 154 N.L.R.B. 380 (1965)).
'"268 N.L.R.B. at 497.

'Trill V. NLRB, 755 F.2d 941 (D.C. Cir. 1985).



1986] NLRB 243

SO restrictively.'^ Despite the circuit court's denial of enforcement, the

NLRB has continued to employ the test it set out in Meyers. Several re-
cent Board decisions therefore reflect the significance of Meyers and the

intention of a majority of the current Board to view ''concerted activities"

narrowly.

B. ABF Freight Systems

In ABF Freight Systems,^'' the Board applied Meyers and found that
a truck driver who was fired when he refused to operate what he con-
sidered an unsafe vehicle had not engaged in concerted activity. While

this factual setting closely resembled that of Meyers, it differed in one

important respect: the ABF employee was covered by a collective bargain-
ing agreement, which provided that no employee could be required to

operate an unsafe truck.'*

It has long been held by the Board, under the Interboro^^ doctrine,

that the reasonable and honest attempt of a single individual to enforce

the terms of a collective bargaining agreement constitutes concerted

activity.^" That doctrine was recently upheld by the Supreme Court in

City Disposal Systems. ^^

In Freight Systems, the Board utilized a novel, two-tiered approach

in resolving the question whether concerted activity was present. The Board

first applied the Meyers test to the conduct at issue: "Accordingly, applying

Meyers, we find that Callahan's refusal to drive did not constitute actual
concerted activity. "^^ Then, and only then, did the Board turn to Inter-

boro. Finding the driver's refusal "petty" and "unfounded,"" rather than

"reasonable" and "honest,"^'' the Board concluded "that under the In-

terboro doctrine, as affirmed by the Supreme Court in City Disposal,

Callahan's refusal to drive based on those complaints was neither con-

certed nor protected activity within the meaning of Section 7 of the Act."^^

Had the Board approached the facts of Freight Systems strictly from
the Interboro perspective, the case would not have marked a significant
development, for the facts fall easily within an Interboro mode of analysis.
But the preliminary application of Meyers to the case obscures even the

clear line of distinction the Supreme Court seemed to envision between

''Id. at 942.

'^271 N.L.R.B. 35 (1984).

"/</.

"Interboro Contractors, Inc., 157 N.L.R.B. 1295, enf'd, 388 F.2d 495 (2d Cir. 1967).

''Id. at 1298.

^'NLRB V. City Disposal Systems, Inc., 104 S. Ct. 1505 (1984).
^^271 N.L.R.B. at 35.

''Id. at 36-37.

'^Interboro, 157 N.L.R.B. at 1298.
^'271 N.L.R.B. at 37.



244 INDIANA LAW REVIEW [Vol. 19:241

Meyers and Interboro, the existence of a collective bargaining agreement.

The Court noted in City Disposal: "[W]here a group of employees are

not unionized and there is no collective-bargaining agreement, an

employee's assertion of a right that can only be presumed to be of interest

to other employees is not concerted activity. . . . The Meyers case is thus

of no relevance here."^^

While the long-range significance of Freight Systems is impossible to

predict, the case does suggest that the present Board will make liberal
use of Meyers in resolving questions of concerted activity. This approach

may act to narrow the scope of Interboro. Indeed, had application of
the Meyers test in Freight Systems indicated concerted activity, the Board,

presumably, would not even have needed to refer to Interboro.

C. Jefferson Electric Company

Even in the context of very serious health and safety complaints, the

Board has strictly applied Meyers to require group action for concerted

activity. For example, in Jefferson Electric Company, ^^ a group of workers

was exposed to noxious fumes caused by a clogged air vent. Several

employees complained to management, but the company did not correct
the problem. The following day, eleven employees had to be sent to the

company doctor; three required hospitalization. The employee most severely

ill filed a state OSHA complaint. She was later discharged for filing the
complaint.^* The Board held her action unconcerted under Meyers because

it found no evidence that she had solicited the support of other employees

before filing her complaint.^'

Jefferson Electric also plainly illustrates another change Meyers has

wrought. Under Alleluia Cushion, the decision overruled by Meyers, the

Board had taken the position that

where an employee speaks up and seeks to enforce a statutory
provision relating to occupational safety designed for the benefit

of all employees, in the absence of any evidence that fellow

employees disavow such representation, we will find an implied
consent thereto and deem such activity to be concerted. '°

This presumption of mutual concern was expressly rejected in Meyers.

The burden of proof is now on the General Counsel to demonstrate sup-
port by other employees for the particular action at issue. As tacitly man-
dated by Meyers, this burden will not easily be met: "Taken by

^'104 S. Ct. at 1510 n.6 (emphasis added).

^'271 N.L.R.B. 1089 (1984).

"Id.

"Id.

^°221 N.L.R.B. at 1000.



1986] NLBR 245

itself . . . individual employee concern, even if openly manifested by several

employees on an individual basis, is not sufficient evidence to prove con-

cert of action."^'

D. Mannington Mills

In Mannington Mills, ^^ the Board tightened the Meyers harness even

further. There, it was held that an employee's threat that he and others

on his shift would refuse to do work left by an earlier shift was an in-

dividual action and not concerted activity. ^^

Frie, the employee, was a crew leader on the night shift and was the

employee representative elected by his department to the company's safety

committee. This committee had a history of raising general issues of

employee concern as well as safety problems. Others in Frie's department

had a longstanding complaint about the company's requiring night shift

employees to do work left uncompleted by the first shift. Frie, acting

in his capacity as employee representative, informed the committee of this

complaint in July of 1980. In October of the same year, Frie again com-

plained about the extra work to the company foreman and stated that

the night crew was not going to do that work in the future. At that point,

Frie also shouted to a fellow employee, '*[I]sn't that right, Wayne." The

reply was not heard. ^'^ Frie also testified that several other employees had

indicated to him that they were going to refuse to do the work, but none

of those employees testified at the hearing. Other employees did testify,

however, that they had complained to Frie and the employer about the

extra work assignments.^^
Following the October incident, the company discharged Frie, con-

tending that he had been discharged for horseplay. An administrative law
judge concluded that the company's stated reason for the termination was

pretextual and that Frie had actually been discharged because of his earlier

complaints about work assignments. The Board found it unnecessary to
ascertain the employer's true motivation, however, concluding that Frie

had not engaged in concerted activity when he threatened to refuse to
accept certain work assignments.^^

Member Zimmerman registered a strong dissent, maintaining that
Frie's October action was a continuation of his earlier complaint to the

committee and had been made in his representative capacity. ^^ He also

'268 N.L.R.B. at 498 (emphasis in original).
^^272 N.L.R.B. 176 (1984).

"M at 177.
'*Id. at 176.

''Id.

''Id. at 176 n.l.

'''Id. at 177 (Zimmerman, Member, dissenting).



246 INDIANA LAW REVIEW [Vol. 19:241

noted that the record clearly evidenced the employer's knowledge of the

concerted nature of Frie's conduct. Zimmerman would have concluded
that the company's horseplay contention was merely a pretext for unlawful

discrimination.^^

Both Jefferson Electric and Mannington Mills suggest that the cur-

rent Board will require strong evidence of other employee support before

finding an individual's action concerted. That support will have to be cur-

rent, unequivocal, and specifically related to the conduct at issue. Any
doubts about whether the employee's actions are based on the authority

given him by others to act on their behalves may well be resolved against
a finding of concerted activity. As demonstrated by the facts of these

two cases, this approach may, in some instances, tend to overlook the

realities of the workplace. For seldom, in the absence of a union, will

one employee give another clear and direct authority to take a particular

action at a particular time on the former's behalf.

E. Collins Refractories

In 1978, the NLRB held in Self-Cycle & Marine Distributor Co.''
that an employee filing an unemployment compensation claim was engaged

in a concerted activity and that the employer's failure to recall an employee

for doing so violates section 8(a)(1). This position was based on the reason-

ing that such claims arise out of the employment relationship, are one

aspect of national labor policy, and are matters of common interest to
other employees. "*"

With its decision in Collins Refractories,^^ however, the Board has

now taken the position that Self-Cycle is incompatible with the standard
for concerted activity enunciated in Meyers: '^Clearly, the filing for benefits

is an individual act undertaken by the individual solely on his own behalf
and for his own benefit rather than for the mutual aid and benefit of
other employees. . . .'"^^

Significant in Collins Refractories is that the Board was not simply

considering an isolated incident of company refusal to recall one employee
(Addis) who had filed an unemployment claim, but was also considering
a general company policy prohibiting the filing of unemployment com-
pensation claims.''^ This distinction was noted in a dissent by Member
Zimmerman, who maintained that determination of the legality of the
company's general rule was not controlled by Meyers.'^'^ He said,

''Id. at 178.

"237 N.L.R.B. 75 (1978).

'"M at 75-76.
^'272 N.L.R.B. 931 (1984).

''Id. at 932 n.2.

''Id. at 931.

**Id. at 933 (Zimmerman, Member, dissenting).



1986] NLRB 241

Under the majority view in Meyers Industries, Addis' filing of

the unemployment claim is not a form of concerted activity and

the Respondent's action toward Addis, standing alone, is perfectly

lawful. However, the Respondent's refusal to recall Addis does

not stand alone. It occurs against the background of a general

rule proscribing unemployment claims. In this context, the refusal

to recall may interfere with the exercise of protected rights, even
though Addis, himself, was not engaged in protected activity.'*'

In support of this proposition, Zimmerman relied on City Disposal
reasoning.'*^ There, the Court explained, in the context of an individual's

attempt to enforce a right grounded in a collective bargaining agreement,

that even though the individual's action may not be concerted, his action
may be protected if permitting the employer to discipline him would chill
the legitimate exercise of concerted activity by other employees. ''^ The

majority's summary rejection of Zimmerman's argument suggests the pre-
sent Board's inclination to apply not only the holding, but also the

rationale, of City Disposal narrowly, in favor of a broad application of

Meyers Industries:

That case [City Disposal] is inapposite to the instant case which

does not involve the invocation of a right rooted in a collective-

bargaining agreement. Our finding that the Respondent's policy
does not affect, let alone restrain, any concerted activity is based

on the clear meaning of the statutory language and is squarely

within Meyers Industries.'**

F. A Word of Caution

Any conclusions based on Meyers Industries regarding whether various
employee actions may be deemed "concerted" should be reached with
a degree of caution. Not only did the D.C. Circuit deny (with strong

language) enforcement of the Board's order in Meyers, "^^ but also every

other circuit court ruling on Meyers-rdatGd Board orders to date has been

reluctant to adopt the Meyers test expressly. '° Furthermore, the Supreme

''Id.

''Id.

^^04 S. Ct. at 1505 n.lO.

^"272 N.L.R.B. at 932 n.2.

^'755 F.2d 941 (D.C. Cir. 1985).

'°See JMC Transport, Inc. v. NLRB, Nos. 84-8%0 and 84-6060 (6th Cir. Nov. 12,
1985) (available on LEXIS, Genfed library, Usapp file) (court found activity concerted even

under Meyers test and declined to rule on whether Meyers was an appropriate interpretation

of section seven); Ewing v. NLRB, 768 F.2d 51 (2d Cir. 1985) (court declined to review
Meyers, relying more on City Disposal's more "liberal view of concerted activity," but



248 INDIANA LAW REVIEW [Vol. 19:241

Court's reference to Meyers in City Disposal^ ^ suggests that the Court

may hmit the scope of Meyers if faced with the issue. ^^

III. The Right to Strike (and Not to Strike)

A. Sympathy Strikes

In Butterworth-Manning-Ashmore Mortuary, ^^ the Board considered

a collective bargaining agreement provision stipulating:

It shall not be a violation of this agreement and it shall not be

cause for discharge or disciplinary action in the event an employee

refuses to enter upon any property involved in a labor dispute

or refuses to go through or work behind any picket Une at the

place of business of any employer party to this Agreement.'^

The mortuary's employees were divided into two bargaining units: the

embalmers and the clerical workers. When the embalmers went on strike,
several clerical workers refused to cross the embalmers' picket line. The

employer then permanently replaced one of the clerical workers and put

her name on a preferential hiring Ust.^^
From these facts, the Board determined that the language contained

in the collective bargaining agreement did not constitute a waiver of the

employer's right to replace permanently a sympathy striker. ^^ In so holding,

the Board overruled in part Torrington Construction Co.,^'' which had

held that an almost identical provision in a collective bargaining agree-

ment did constitute a waiver of the right to discharge a sympathy striker

under similar circumstances.^^

The Board also distinguished Butterworth from Torrington on the basis

of the difference between discharging an employee and permanently replac-

ing him.^^ In Butterworth, the Board recognized that sympathy strikes

are protected activity, but likened them to economic strikes, thereby per-

mitting the employer to replace the sympathy striker permanently.^" The

indicated it was in accord with the D.C. Circuit's reasoning in the denial of enforcement

of Meyers); NLRB v. Esco Elevators, Inc., 736 F.2d 295 (5th Cir. 1984) (court relied on
other precedent to find absence of concerted activity and did not find it necessary to deter-

mine if Meyers test should be applied).

"104 S. Ct. at 1510 n.6.

^^See supra text accompanying notes 25-26.

'^270 N.L.R.B. 1014 (1984).

'*Id.

''Id.

''Id. at 1015.

"235 N.L.R.B. 1540 (1978).

''Id. at 1541.

"270 N.L.R.B. at 1015.

''Id. at 1014.



1986] NLRB 249

Board held that the contractual language at issue did not constitute the

required clear and unmistakable waiver of the right to replace

permanently/'

That portion of Torrington providing sympathy strikers protection

under the Act clearly survives Butterworth. In Business Services,^^ decided

after Butterworth, the Board relied on Torrington to affirm an employee's

right to honor ''stranger" picket lines/^ Business Services involved

Manpower temporary employees who had been sent to work for two days
for one of Manpower's customers. When the Manpower employees refused
to cross the picket at the facility, Manpower discharged them. The Board,
with Chairman Dotson dissenting, held that the employer had violated

the Act because the sympathy strikers had engaged in concerted activity.

The Board reasoned that honoring pickets was a "longstanding tactic of

the American trade union movement, rooted in cardinal union prin-

ciples."^"* The majority strongly rejected Chairman Dotson's contention

that Manpower's "business considerations" outweighed the employees' sec-

tion seven rights and found it immaterial whether the employees were

famiUar with the issues involved in the dispute or were merely exercising

a general refusal to cross picket lines.
^^

In Indianapolis Power & Light Co.,^^ the Board narrowed the language
needed in a collective bargaining agreement to constitute union waiver

of the right to engage in sympathy strikes. There, the union had agreed

not to "take part in any strike. "^^ The Board held that the employer

had the right to rely on this language in suspending and threatening with

discharge an employee who refused to cross a stranger picket line. The
Board explained that a broad no-strike clause will now be interpreted as
a prohibition against sympathy strikes, as well as primary strikes, unless

there is extrinsic evidence or the contract demonstrates that the parties

intended to exempt sympathy strikes from the general proscription.^* The

Board thereby overruled United States Steel Corp.^^ and W-I Canteen
Service^ ^ to the extent inconsistent with its holding in Indianapolis Power
& Light. The former decisions required the no-strike provision to men-

*'M at 1015.
"272 N.L.R.B. 827 (1984).

""Stranger" picket lines are picket lines established at facilities other than that of

the employee's own employer and which were not established as the result of a dispute

with the primary employer.

^"272 N.L.R.B. at 828.

''Id.

**273 N.L.R.B. No. 211 (Jan. 31, 1985), 118 L.R.R.M. (BNA) 1201 (1985).

"M slip op. at 2, 118 L.R.R.M. at 1201.
''Id. slip op. at 2, 118 L.R.R.M. at 1202.

"264 N.L.R.B. 76 (1982), enforcement denied, 711 F.2d 772 (7th Cir. 1983).
'"238 N.L.R.B. 609 (1978), enforcement denied, 606 F.2d 738 (7th Cir. 1979).



250 INDIANA LA W REVIEW [Vol. 19:241

tion sympathy strikes specifically before that activity could be included

in the prohibition.^'

B. The Right To Resign During a Strike

In June of 1985, the United States Supreme Court considered the other

side of the strike coin—the right of an employee not to strike. Specifically
at issue in Pattern Makers' League of North America v. NLRB^^ was
a provision in a union constitution prohibiting members from resigning

from the union during a strike or when a strike was imminent.'^ The
union fined ten members who resigned from the union in violation of
the provision and returned to work. The Board ruled that the union's

action was a violation of section 8(b)(1)(A) of the National Labor Rela-

tions Act.^'* The Seventh Circuit affirmed/^ and the Supreme Court granted

certiorari ^^ to resolve the conflict thus created between the Seventh and

the Ninth Circuits. The latter court had earlier held that unions may im-
pose restrictions on their members' right to resign. ^^

Despite the Court's 1967 holding in NLRB v. Allis-Chalmers''' that
section 8(b)(1)(A) does not prohibit labor unions from fining present

members, the Court concluded in Pattern Makers* that the Board had

reasonably construed this section of the Act to prohibit a union from

fining members who have tendered resignations invalid under the union's
constitution. Limiting Allis-Chalmers to a recognition that Congress never

intended section 8(b)(1)(A) to interfere with the internal affairs or organiza-

tion of unions,^' the Court agreed with the Board's view that an in-

terference with the right to resign extends to external enforcement of union

rules.**' This extension, reasoned the Court, could not be countenanced

by section seven of the Act, which grants employees the right to refrain

from any or all concerted activities.*' By limiting a union member's right
to resign, the Court concluded, the union has impinged upon these sec-
tion 7 rights, as prohibited by section 8(b)(l)(A).*^ Stated differently,

restricting a union member's right to resign * impairs the policy of volun-

tary unionism."'^

^'273 N.L.R.B. No. 211, slip op. at 2-3, 118 L.R.R.M. at 1202.

'M05 S. Ct 3064 (1985).

''Id. at 3066.

'"Pattern Makers' League of North America, 265 N.L.R.B. 1332 (1982).

''Pattern Makers' League of North America v. NLRB, 724 F.2d 57 (7th Cir. 1983).
'^Pattern Makers' League of North America v. NLRB, 105 S. Ct. 79 (1984).
''Machinists Local 1327 v. NLRB, 725 F.2d 1212 (9th Cir. 1984).
"388 U.S. 175 (1967).
"105 S. Ct. at 3069.

''Id.

"29 U.S.C. § 157 (1982).
''Id. § 158(b)(1)(A).

"105 S. Ct. at 3071.



1986] NLRB 251

IV. Weingarten Right

In NLRB V. /. Weingarten, ^^ the Supreme Court ruled that an
employee is entitled to representation at an interview that he reasonably

believes will result in disciplinary action against him/^ Three NLRB deci-
sions rendered during the survey period have limited the right and remedy

afforded by Weingarten.

A. Prudential Insurance

One limitation placed on the Weingarten right was the Board's deter-
mination that the protection can be waived by a collective bargaining agree-

ment. In Prudential Insurance,^^ the union had argued that the right is

a fundamental individual employee concern not subject to waiver by a

union. *^ The Board, however, relied on the Supreme Court's decision in

Metropolitan Edison, ^^ that a union can waive an employee's statutory

rights, to find that the Weingarten right, like the right to strike, is sub-

ject to being waived by the union.*' The Board went on to conclude,

contrary to its initial decision in the case, that the contract provision in

question constituted a clear and unmistakable waiver of the right.'" The
contract clause provided in pertinent part:

The Union further agrees that neither the Union nor its members
shall interfere with the right of the Employer:

(b) To interview any Agent with respect to any place of his work
without the grievance committee being present."

B. Sears, Roebuck & Co.

The Board also decided in 1985 that the Weingarten right applies only
to unionized employees—that employees not represented by a union have
no right to the presence of a fellow employee at a disciplinary interview.
Sears, Roebuck & Co.^^ therefore reversed the position the Board had
taken in 1982 in Materials Research Corp.,^^ that the Weingarten right
extends to unrepresented employees.

'^420 U.S. 251 (1975).

''Id. at 262.

**275 N.L.R.B. No. 30 (April 25, 1985), 119 L.R.R.M. (BNA) 1073 (1985).
''Id.

"460 U.S. 693 (1983).
"275 N.L.R.B. No. 30, slip op. at 2, 119 L.R.R.M. at 1073.
''Id.

"'Id. slip op. at 3, 119 L.R.R.M. at 1074.
"274 N.L.R.B. No. 55 (Feb. 22, 1985), 118 L.R.R.M. (BNA) 1329 (1985).
"262 N.L.R.B. 1010 (1982).



252 INDIANA LAW REVIEW [Vol. 19:241

In Sears, an employee requested that a fellow employee or a represen-

tative of the union conducting an organizational campaign be present at

an interview. The Board determined that the employer had not violated

the Act by denying the request. The Board reasoned that the Materials

Research rule infringed on the employer's freedom to deal individually

with employees, a right employers have in the absence of a union.'''

The Board rejected the argument that because the Weingarten right

is rooted in section seven, which extends its protections to both represented

and unrepresented employees, Weingarten should apply to unrepresented

workers.'^ The Board maintained, 'The scope of Section 7's protections

may vary depending on whether employees are represented or
unrepresented. . . ."'^ Further, the Board reasoned that placing a Wein-

garten representative in a nonunion setting would be contrary to the Act's

exclusivity principle; it would require the employer to recognize and deal

with the equivalent of a union representative.'^

C. Taracorp Industries

In addition to narrowing the class of employees entitled to Weingarten

protection, the Board recently limited the remedy for an employer's viola-

tion of the right. In the Board's original decision in Taracorp Industries'^

in July of 1981, it concluded that the employer had violated the employee's

Weingarten right and issued a cease and desist and make-whole order

(reinstatement and back pay). However, before its action could be reviewed

by the court of appeals, the Board reconsidered its decision and order.''

Upon reconsideration in 1984, the Board did not disturb its conclu-
sion that the employer had violated the Act by denying the employee's

request for union representation at a disciplinary interview. However, the

Board determined that a make-whole remedy in this situation was

inappropriate, '°° thereby overruling Kraft Foods^^^ and its progeny.'"^

Taracorp Industries involved an employee who refused to perform
a task as directed by the plant foreman. The foreman immediately in-
formed the employee that he was suspended and should report to the

plant manager's office. While the employee was en route to the manager's

office, the foreman telephoned the manager and described the incident.

The manager replied, "[I]f [the employee] refuses to do the job, that's

'^274 N.L.R.B. No. 55, slip op. at 2, 118 L.R.R.M. at 1330.

''Id.

'"Id.

""'Id. slip op. at 5, 118 L.R.R.M. at 1331.

"257 N.L.R.B. 463 (1981).

"273 N.L.R.B. No. 54 (Dec. 12, 1984), 117 L.R.R.M. (BNA) 1497 (1984).

'""Id. slip op. at 4, 117 L.R.R.M. at 1498.

""251 N.L.R.B. 598 (1980).

'''See, e.g., Illinois Bell Telephone Co., 251 N.L.R.B. 932 (1980).



1986] NLRB 253

termination." Upon reaching the manager's office, the employee requested
representation, which the manager refused. At the end of the interview,

the employee was terminated.'"^

Neither the administrative law judge nor the Board (at either stage)

found that the employee had been discharged for asserting his Weingarten

right; rather, they agreed that he had been fired for insubordination.'^^''

In this situation—where termination is for just cause and not for asser-
tion of the right—the Board has now taken the position that it is without
authority to order reinstatement and back pay.'"^

In support of this conclusion, the Board cited the Supreme Court's

statement in Fibreboard Corp.^^^ that the legislative history of section 10(c)

of the Act indicates that it was designed to preclude the Board from

reinstating an individual who has been discharged because of misconduct.'"^
The Board also noted that the courts of appeals have repeatedly denied

enforcement of make-whole orders in this context.'"^ Finally, the Board

criticized what it termed "the expansionist approach to Weingarten.''
^^'^

Consequently, when termination is found to be for just cause, the

Board will not order reinstatement and back pay, even though the employer

has violated the employee's right to representation at the interview. A
make-whole remedy will be appropriate only if the employee was dis-

charged or disciphned for asserting the right to representation.""

V. Duty to Bargain

A. Access to Employer's Property

Section 8(a)(5) of the National Labor Relations Act imposes on the

employer the duty to bargain regarding the terms and conditions of

employment.'" This duty to bargain also includes the duty to make cer-
tain information available to the union during the bargaining process."^

In Holyoke Water Power Co.,"^ a union requested access to the
employer's property to survey potential health and safety hazards.

Specifically, the union asked that the company permit the union's industrial

hygienist to inspect the noise level of a forced draft fan room used in

'"'273 N.L.R.B. No. 54, slip op. at 3, 117 L.R.R.M. at 1497.

'"V^. slip op. at 3-4, 117 L.R.R.M. at 1498.

""M slip op. at 9, 117 L.R.R.M. at 1500.
'"Tibreboard Corp. v. NLRB, 379 U.S. 203 (1964).
""'Id. at 217.

""'273 N.L.R.B. No. 54, slip op. at 6 n.ll, 117 L.R.R.M. at 1499 n.ll (citing cases).

°Vc?. slip op. at 8-9, 117 L.R.R.M. at 1499-1500.

""/c?. slip op. at 7 n.l2, 117 L.R.R.M. at 1499 n.l2.
"29 U.S.C. § 158(a)(5) (1982).
'''See, e.g., NLRB v. Realty Maintenance, Inc., 723 F.2d 746 (9th Cir. 1984); General

Motors Co., Inc. v. NLRB, 700 F.2d 1083 (6th Cir. 1983).
'"273 N.L.R.B. No. 168 (Jan. 11, 1985). 118 L.R.R.M. (BNA) 1179 (1985).



254 INDIANA LA W REVIEW [Vol. 19:241

the combustion process. The administrative law judge had ruled that, under

section 8(a)(5), the company had an obligation to provide the access re-
quested.'"* The judge, in reaching this conclusion, reasoned that the com^

pany had an obligation to provide information relevant and necessary to

the union's performance of its representative duty, that the company had

a duty to bargain regarding health and safety, and, most significantly,

that a request for access to check for health and safety violations is the

legal equivalent of a request for information. He relied on Winona
Industries^ ^^ to support his final proposition.

The Board, however, overruled Winona Industries in this regard and

determined that a request for access could not be equated with a request

for information."^ (The company had offered the union test results rather
than access, but the administrative law judge had ruled the test results

inadequate.) Instead, the Board now takes the position that an employer's
right to control its property is a factor that must be weighed against the

employee's right to proper representation in determining whether an out-

side union representative should be afforded access to the employer's prop-

erty."'

In applying this balancing test to the facts in Holyoke, the Board

found that the company's property interest was outweighed by employee

concerns."* But in ordering the company to permit the union hygienist

to enter its fan room to test for noise hazards, the Board, unHke the
ALJ, limited access to a reasonable period sufficient for the union to

fulfill its representation duties without undue interruption of the com-

pany's operations. The Board explained: "This limitation is in line with

our resolve to accommodate the conflicting rights with as little destruc-

tion of one as is consistent with the maintenance of the other.""'

B. Bargaining Orders

In 1969, when it decided NLRB v. Gissel Packing Co.,^^^ the Supreme
Court set out the guidelines for determining when issuance of a bargain-
ing order would be a proper exercise of the Board's remedial power under

section 10(c) of the Act.'^' In what has become known as Gissel category
one, the Court, in dictum, left open the possibility of imposing a bargain-

ing order without inquiry into the majority status of the union in '*excep-

'*Id. slip op. at 2-3, 118 L.R.R.M. at 1180.

"257 N.L.R.B. 695 (1981).
'^273 N.L.R.B. No. 168, slip op. at 4, 118 L.R.R.M. at 1180.

''Id.

"Id. slip op. at 5-6, 118 L.R.R.M. at 1180-81.

"M slip op. at 6, 118 L.R.R.M. at 1181.
^"395 U.S. 575 (1969).

''Id. at 613-15.



1986] NLRB 255

tional" cases marked by "outrageous*' and
*

'pervasive" unfair labor prac-

tices.'^^

Following Gissel, the Board and the courts of appeals have struggled

with the question of when, if ever, the Board has the power to issue a

bargaining order when the union has never demonstrated majority status.

The Court of Appeals for the District of Columbia presented the dilemma

in the following terms:

[I]f the Board lacks authority to issue them, employers who
offend the law most egregiously will escape the most stringent

remedy in the NLRB's arsenal; if the Board has the authority
and exercises it to sanction patent and incessant unfair labor prac-

tices, employees may be saddled for a prolonged period with a
union not enjoying majority support.'"

In Gourmet Foods, Inc.,^^^ the Board had occasion to reexamine the

problem and, this time, resolved the question in favor of majority rule

principles. After a thorough review of the Act, legislative history, court

precedent, and legal commentary, the Board concluded that it had no

authority to issue a nonmajority bargaining order.'" In so ruling, the

Board expressly overruled previous cases in which it had considered itself

authorized to issue nonmajority bargaining orders and in which it had

exercised that authority.'"

C Successor Employer's Duty To Bargain
With Harley-Davidson Transportation Co.,^^'' the Board has eased the

burden imposed on successor employers to bargain with unions that may
no longer enjoy majority status. In this case, the union had had a three-

year collective bargaining agreement with the prior employer that expired

on March 31, 1982. On April 1, 1982, the successor, Harley-Davidson,
assumed control of the operation. A majority of the employees hired by
Harley-Davidson had been employed by the prior employer, and these

employees continued to comprise a majority of the bargaining unit at issue.

On July 6, 1982, the union requested bargaining, and Harley-Davidson,
recognizing that it might be a successor, agreed to bargain. After meeting

three times, Harley-Davidson withdrew from bargaining after being

'''Id. at 613-14.

'"Conair Corp. v. NLRB, 721 F.2d 1355, 1378 (D.C. Cir. 1983).
'^'270 N.L.R.B. 578 (1984).

'''Id. at 583.

'"Id. (citing Conair Corp., 261 N.L.R.B. 1189 (1982), enf'd in part and enforcement

denied in part, 721 F.2d 1355 (D.C. Cir. 1983)).
'^^273 N.L.R.B. No. 192 (Jan. 22, 1985), 118 L.R.R.M. (BNA) 1204 (1985).



256 INDIANA LAW REVIEW [Vol. 19:241

presented with a petition signed by a majority of its employees stating

that they no longer wanted to be represented by the union. '^*

At the hearing level, the judge found that by conceding it was a suc-

cessor and agreeing to negotiate, Harley-Davidson had voluntarily recog-

nized the union and had impliedly admitted that it had no reason to doubt

majority status. The judge therefore concluded that Harley-Davidson

assumed the obligation to bargain for a
*

'reasonable time" regardless of

a subsequent good-faith doubt regarding majority status.'" He relied on
Landmark International Trucks^^^ and, alternatively, on Holiday Inn of
Niles Michigan^ ^^ to reach this conclusion.

The Board disagreed with the judge's characterization of the suc-

cessor's bargaining obhgation and thus did not adopt his conclusion.

Rather, the Board ruled that when a successor employer recognizes a union

that has been in place for one year or more, the union enjoys only a

rebuttable presumption of majority status. The successor employer can

withdraw from negotiation at any time following recognition if it can show

that the union has lost its majority status or that the refusal to bargain

was "grounded on a good-faith doubt based on objective factors that

the union continued to command majority support.'"'^ In so holding,
the Board expressly overruled Landmark, Holiday Inn, and similar cases

to the extent they were inconsistent with the Board's new position. The

Board also determined that the employee petition, even though the

employer had not authenticated the signatures, constituted a sufficient

objective basis to support the employer's good faith doubt of the union's

continued majority status.'"

VI. Statute of Limitations

Section 10(b) of the Act provides that "no complaint shall issue based

upon any unfair labor practice occurring more than six months prior to

the filing of the charge.'"'"* In United States Postal Service Marina Mail

Processing Center,
^^^

the Board adopted a new position with respect to
the commencement of this six-month Hmitation period.

U.S. Postal Service involved an employee who received a letter on
January 29, 1981, advising him that his employer intended to remove his

name from its employment rolls no later than thirty days from receipt

'''Id. slip op. at 2, 118 L.R.R.M. at 1204.

'"M slip op. at 2-3, 118 L.R.R.M. at 1204-05.
"°257 N.L.R.B. 1375 (1981).
'"241 N.L.R.B. 555 (1979).
"^273 N.L.R.B. No. 192, slip op. at 3, 118 L.R.R.M. at 1205.

'''Id. slip op. at 4, 118 L.R.R.M. at 1205.
""29 U.S.C. § 160(d) (1982).
"'271 N.L.R.B. 397 (1984).



1986] NLRB 257

of the letter for misconduct and failure to follow instructions. Despite

his denial of the allegations, the employee received another letter on

February 27, 1981, informing him that the evidence supported the charges

against him and that his removal would be effective March 2, 1981. It

was not until the employee had exhausted his internal appeal rights un-

successfully, however, on August 21, 1981, that his name was officially
removed from the employment rolls. On January 6, 1982, he filed an
unfair labor practice charge against his former employer. '^^

The Board, breaking with established precedent, held that the six-

month limitation period began to run on February 27, 1981, the day the

employee received notice advising him of his removal, rather than on

August 21, 1981, the date of his actual removal. '^^ Several previous Board

cases had held that the 10(b) period begins to run, not at the time the

employee receives unequivocal notice of an adverse employment action,

but at the time the action is actually taken.
'^* The Board noted that

appellate courts have not agreed with this interpretation of the statute.'^'

In changing its position, the Board relied on two Supreme Court deci-

sions,"" in the Title Vir^' and section 1983"^ contexts, which hold that

the pertinent statutes of limitations begin to run when communication
of the adverse employment decision is made, rather than when the effect
of the adverse decision is felt. In adopting the Court's rationale and

applying it to unfair labor practice cases, the Board explained:

[T]he Board will hence-forth focus on the date of the alleged

unlawful act, rather than on the date its consequences become

effective, in deciding whether the period for filing a charge under

Section 10(b) has expired. Where a final adverse employment deci-

sion is made and communicated to an employee—whether the deci-
sion is nonrenewal of an employment contract, termination, or

other alleged discrimination—the employee is in a position to file
an unfair labor practice charge and must do so within 6 months

of that time rather than wait until the consequences of the act

become most painful."*^

'"/d/. at 397-98.

'''Id. at 400.

'''See, e.g., Roman Catholic Diocese of Brooklyn, 222 N.L.R.B. 1052 (1976), enforce-
ment denied in relevant part sub nom. Nazareth Regional High School v. NLRB, 549 F.2d
873 (2d Cir. 1977).

'"271 NLRB at 398 (citing cases).
•'"Delaware State College v. Ricks, 449 U.S. 250 (1980) (Title VII action); Chardon

V. Fernandez, 454 U.S. 6 (1981) (§ 1983 action).

'^'42 U.S.C. §§ 2000e-2000e-17 (1982).
'^^42 U.S.C. § 1983 (1982).
'^'271 N.L.R.B. at 399-400.