No, this is not another comment on the much-publicized and highly politicized complaint filed by the National Labor Relations Board ("Board" or "NLRB") against Boeing for allegedly moving work from Washington to South Carolina in retaliation for protected union activity. Rather, it pertains to Sheet Metal Workers Local 15 (Brandon Medical Center) and Auto Workers Local 376 (Colt’s Mfg. Co.), decisions issued by the Board on May 26 and May 27, 2011, respectively.

Although these cases involved entirely different fact situations, in each instance a panel of the NLRB rejected findings of an administrative law judge who, after hearing the evidence, concluded that a union had violated the National Labor Relations Act("NLRA" or "Act"). Both panels included Members Liebman and Pearce, while Member Hayes dissented in both cases.

In Sheet Metal Workers the question was whether a 16′ x 12′ rat balloon with a sign attached to its abdomen along with a union member displaying a leaflet with outstretched arms to incoming and outgoing traffic constituted unlawful picketing under Section 8 (b)(4)(ii)(B) or was simply lawful handbilling.

Based upon the evidence, including the union organizer’s admission to the hospital safety and security director that the union was "picketing" and that the rat balloon "would probably get the attention of the public more than just regular handbills," the administrative law judge found this conduct to be unlawful picketing. Expanding upon a 2010 decision which had held that large, stationary banners did not constitute pickets, however, Members Liebman, Pearce and Becker rejected this conclusion. According to them, the giant, sign-holding rat and union supporter "entailed no element of confrontation, as they were stationary and located at sufficient distances (between 100 and 170 feet) from the vehicle and building entrances to the hospital" so "visitors were not confronted by an actual or symbolic barrier as they arrived at, or departed from, hospital."

By contrast, Member Hayes would have upheld the ALJ’s determination, reasoning:

"For pedestrians or occupants of cars passing in the shadow of the rat balloon, which proclaims the presence of a ‘rat employer’ and is surrounded by union agents, the message is unmistakably confrontational and coercive… Such displays, now frequent in labor disputes, constitute a signal to third parties that there is, in essence, an invisible picket line that should not be crossed."

The following day, in Auto Workers, Members Liebman and Pearce again rejected an ALJ’s finding that a union had violated the Act; and Member Hayes again disagreed. This time the issue was whether a union could require that employees objecting to union dues being used for activities other than collective-bargaining, contract administration and grievance adjustment renew such objection annually.

The ALJ concluded that there was no valid business justification for the annual renewal requirement, especially since the union did not have similar requirements for "union membership cards, dues authorization checkoff cards or notice of resignation from the union" and could not satisfactorily explain such inconsistency. The Board majority, however, concluded that there was no showing that the union’s actions were "arbitrary, discriminatory, or in bad faith" and therefore "conclude[ed] that the Unions’ procedures comport with the duty of fair representation."

Dissenting, Member Hayes would have found the annual renewal requirement to be a substantial and arbitrary burden, as well as discriminatory. Moreover, in addition to upholding the ALJ, he would have addressed whether the standard duty of fair representation standard used by the majority was too deferential when the conduct arguably involved a union’s interference with an employee’s Section 7 rights.

Although the NLRB undoubtedly tries to apply and interpret the Act correctly, its members each bring a certain perspective to that process. And, while these holdings are limited to somewhat unique facts and narrow legal issues, they provide a warning which all employers should heed: currently the Board majority has a decidedly more pro-union perspective than it did under the previous administration.