Monday, November 6, 2006

Retroactive Application of NLRB's Harborside Rule

Nlrb_3 In SNE Enterprises, Inc., 348 N.L.R.B. No. 69 (Nov. 3, 2006) (not yet posted by NLRB), the Board retroactively applied Harborside Healthcare.  In Harborside, the Board declared that it would treat supervisors' pro-union conduct, even outside an election's critical period, as grounds for overturning an election absent mitigating evidence showing that the conduct did not interfere with employees' free choice.  SNE involved leadpersons who solicited union authorization cards before the 2004 decision in Harborside changed the Board's past practice of evaluating supervisory pro-union conduct on a case-by-case basis.

The Board's 2-member majority (Chairman Battista and Member Shaumber) overruled the Regional Director's finding that the leadpersons' limited authority over the employees and past eligibility to vote mitigated the tendency of their conduct to interfere with employee free choice.  Member Liebman dissented; she reiterated her objection to Harborside and stated that it was unfair to overturn the union's election victory because leadmen with minimal supervisory authority engaged in conduct that was not objectionable at the time it occurred.

The Harborside line of decisions would be easier to swallow if the Board treated supervisors' anti-union conduct equally, but as Liebman notes, it doesn't.  This case also shows yet another area affected by the Board's recent supervisor cases.  As more workers become classified as supervisors expect more decisions like this one.  Ironically, one could read Liebman's dissent as using the new supervisor cases to argue that as more workers with very minimal authority are considered supervisors, the rationale for Harborside becomes weaker.


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I've argued before on this blog that this sort of case made the recent "Kentucky River" progeny decisions even worse. Compounding this problem is the fact that folks may be held to be supervisors fairly late in the game, creating potential fatal (but, at least in my view, unnecessary) risks for union organizers.

Posted by: Joseph Slater | Nov 7, 2006 11:41:27 AM

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