• NLRB Loses Battle to Force Contractor and its Employees to Stay Union
  • July 16, 2003 | Author: Thomas A. Lenz
  • Law Firm: Atkinson, Andelson, Loya, Ruud & Romo, [incorporation phrase format]A Professional Corporation - Cerritos Office
  • Nova Plumbing is a Southern California residential plumbing contractor that signed a one-time contract with the Plumbers Union. It became apparent that Nova's employees vocally opposed having the Union. Before the contract expired Nova discussed with the Union that none of its competitors were signed to contracts and that Nova's own employees did not want the Union. Ultimately, Nova told the Union that it was walking away from the Union after the contract expired. At no time had the Union ever had the real support of the employees.

    In response to Nova's decision to walk away from the Union, the Union filed unfair labor practice charges against Nova. The theory was that Nova could not lawfully walk away from its bargaining relationship with the Union. The Union demanded that Nova bargain for a new agreement and insisted that the wage and union benefit terms of Nova's expired agreement continued to apply to Nova's operations. Nova disagreed. However, the National Labor Relations Board decided to prosecute Nova on the Union's charges.

    The theory the Labor Board prosecuted was that even though Nova's own employees expressed majority opposition to the Union, boilerplate language contained in a document referenced by Nova's own union agreement said a majority of Nova's employees supported the Union. There was no real evidence to back up this claim that the Union had majority support. Basically, the Labor Board and the Union stated that this boilerplate language, which Nova never negotiated, trumped the free choice of Nova's employees not to have a Union.

    At trial the Judge recognized that a majority Nova's employees opposed the Union and threw out the complaint against Nova. The Labor Board took the next step and appealed to an administrative panel in Washington, D.C., that at the time consisted largely of union-friendly Clinton appointees. That panel reversed the Judge and said that Nova acted unlawfully. The panel ignored the evidence that Nova's own employees opposed the Union.

    Nova appealed to the District of Columbia Circuit Court in Washington, D.C. The Labor Board opposed Nova's appeal and asked the Court to enforce the panel's order.

    After reviewing the parties' briefs and holding an oral argument in Washington, D.C. in April 2003, the Court announced its ruling in June 2003. The Court agreed with Nova and refused to enforce the panel's order.

    The Court ruled that Nova's employees carry the real weight in determining whether employees want a union. The Court rejected the Labor Board and Union efforts to force employees and an employer into Union relationships through boilerplate contract language in the face of real employee opposition. In this regard, the Court specifically criticized the panel's ruling noting that no evidence of real union support ever existed.

    The ruling by the Court protects employees' rights under federal labor law to choose whether or not to have union representation. The ruling also ensures that contractors continue to enjoy the freedom to walk away from union relationships after contracts expire. Hopefully, the ruling signals an end to NLRB efforts to end-run employee choice through false premises based on boilerplate contract language. Most importantly, this ruling will ensure that a contractor threatened with extinction because of bad legal rulings at lower levels will be able to continue to exist and to compete in the difficult construction marketplace in Southern California.

    Nova now looks forward to recovering the costs the Court awarded to it for winning the appeal and to pursuing the attorney's fees it had to spend to fight this battle for survival.