The Obama NLRB is Rapidly Changing the Law Regarding Unions and Contractors: Part II
By: Frank L. Carrabba

In the March 2012 issue, I discussed the National Labor Relations Board's (NLRB) attempts at rule-making concerning the "Employee Rights" poster and the significant changes to its election procedures. Those attempts were contested by employer groups and are on appeal at the U.S. Court of Appeals for the D.C. and Fourth Circuits. No decisions have issued at this date.
In addition to rule-making, the Board has been busy overruling long-standing precedent and expanding union's power as it relates to employers and employees. Some of its key decisions are:

Hispanics United of Buffalo - The Board found that the employer unlawfully fired five employees because of their Facebook post and comments about a co-worker who intended to complain to management about their work performance. The Board held that the Facebook conversation was "concerted activity" protected by the National Labor Relations Act (NLRA).

Latino Express - In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondent companies to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned.

WKYC-TV, Gannet Co. - The Board overruled a 50-year precedent (Bethlehem Steel-1962) in finding that an employer must continue to check off union dues from employee's wages even though the collective bargaining agreement that required it to do so has expired.

United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506 - The Board found that the union, who had placed banners - each three to four feet high and as long as 20 feet - outside of the entrances to the secondary employers' work sites on public sidewalks and rights-of-way, but did not otherwise patrol, carry picket signs, or interfere with the secondary employers' work sites, did not violate Section 8(b)(4)(ii)B of the Act. The NLRB held that "nonconfrontational" displays of stationary banners differed from traditional picketing or similar activities.

Sheetmetal Workers Local Union No. 15 - The Board held that neither displaying a 16-foot-tall balloon rat nor holding a leaflet constituted picketing under the NLRA.

Carpenters & Joiners of America, Local Union No. 1827 - The NLRB found that a union did not violate the NLRA by displaying a large stationary banner that proclaimed "shame" on various secondary employers during a labor dispute with a construction company. The Board held that the union bannering was not picketing and did not "threaten, coerce, or restrain" the secondary employers.

These are just a few of the recent NLRB rulings that affect employers in their dealing with their employees and unions that may represent them. To learn more about these cases and how to legally combat a union organizing campaign, you should plan to attend the AGC - Houston Chapter's Brown Bag Briefing on January 23, 2013.


Frank Carrabba has been engaged in the practice of labor and employment law for over forty-one (41) years. He represents employers exclusively in all areas of labor and employment law, including alleged employment discrimination, NLRB charges against employers, union organizing campaigns, Davis Bacon Act related issues, alleged wrongful terminations and wage and hour issues.

His first trial resulted in a U.S. Supreme Court decision. He began his career at the NLRB in Washington, D.C. in 1971.

He is board certified in labor and employment law by the Texas Board of Legal Specialization. He has been a member of the Employment Practices Committee of the AGC-Houston Chapter for many years and has twice edited the Labor Relations Guide and the Open Shop Field Supervisor's Handbook for the Chapter.

Mr. Carrabba can be reached at 713-621-8363


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