Quarterly Update of NLRB and Related Court Decisions - October 2006

October 27, 2006

The National Labor Relations Board and courts regularly issue decisions interpreting the National Labor Relations Act relevant to unionized and union-free employees. In addition to continuing to summarize and post the implications of significant decisions on an individual basis, such as the recent series of decisions addressing supervisory status [See Labor Board Issues Historic Decisions Clarifying Standards for "Supervisor" Status; Who Is a Supervisor, Anyway? Long-Anticipated Board Rulings Should Help to Clarify Supervisory Status] and the recent decision providing employees with unfettered rights to file a charge with the Board [See Handbook Provision Compelling Arbitration of Disputes Unlawfully Interferes with Employees' Organizing Rights], in this first of a quarterly series, Jackson Lewis LLP’s Labor Practice Group will catalogue and summarize recent NLRB and related court decisions. With certain minor exceptions, this October update discusses NLRB and court decisions issued between approximately April and September of 2006.

1. Decisions Balancing Fundamental Employer Rights and Statutory Employee And/Or Union Rights
   The NLRB and courts often have to balance employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity and labor organizations’ rights under Section 8 of the Act with employers’ rights to manage the workplace. While recent decisions evince a trend favoring employers, the NLRB and courts have continued to uphold statutory rights possessed by employees’ and labor organizations.
   1. Decisions Upholding Employer Rights
      1. Wearing Of Insignia In A Hospitality and Health Care Settings
         In Starwood Hotels & Resorts Worldwide Inc. d/b/a W San Diego, 348 NLRB No. 24 (9/29/06), the NLRB analyzed whether a hotel could prohibit a delivery server from wearing a bright union button stating “ JUSTICE NOW! JUSTICIA AHORA! H.E.R.E. LOCAL” in public and non-public areas. The NLRB held that a prohibition in public areas was lawful and fell within the “special circumstances” exception to the general rule preventing employers from banning union insignia since the button would conflict with the professionally designed black uniform worn by staff that created a “special atmosphere for hotel customers.” However, the NLRB also held that the prohibition was unenforceable in non-public areas as it "could not--and did not--interfere with the unique atmosphere that the [hotel] sought to create for hotel guests.” The NLRB also rejected the union’s claim that the employer unlawfully prohibited a cook from wearing a 2 ½ wide union sticker due to the safety risks posed if the sticker fell off.
         
         In Sacred Heart Medical Center, 347 NLRB No. 48 (6/30/06), the NLRB held that a hospital can prohibit its nurses from wearing “RNs Demand Safe Staffing” union buttons in any area where they might encounter patients or family members. While employees generally are permitted to wear union insignia in a health care workplace outside immediate patient care areas, the Board, reversing the Administrative Law Judge, held that here the employer rebutted the presumption against restrictions on such buttons outside immediate patient care areas by showing that the message was disturbing to patients and their families, and therefore constituted “special circumstances” that justified the restriction. In the context of an acute-care facility, the Board found that such a claim would cause worry among patients and their families, and “disturb the tranquil hospital atmosphere that is necessary for successful patient care.”
      2. Confidentiality Of Investigation Notes
         In Northern Indiana Public Service Co., 347 NLRB No 17 (5/31/06), the NLRB ruled that an Indiana electric facility did not violate the NLRA by refusing a union request for investigative notes in connection with an employee’s complaint of threatening conduct by a supervisor. The Board reiterated that while a labor organization generally has the right to relevant information necessary for its representation of its members, in certain circumstances, a company’s interest in confidentiality outweighs the union’s need for the information.
         
         This case arose after an employee complained to his union representative that a supervisor behaved in a threatening manner towards him and other employees. The employer conducted an investigation and assured the parties and a witness that the interviews would be kept confidential. The notes were kept in a password-protected file and not shown to any other manager. After the union filed a grievance alleging the company failed to provide a safe workplace in violation of a collective bargaining agreement provision, it requested information regarding the investigation. The employer, citing confidentiality, provided only the names of the employees it had interviewed.
         
         In overturning the Administrative Law Judge’s decision in favor of providing the notes to the union, the Board noted that a party may refuse to furnish confidential information if it can show that it has a legitimate and substantial confidentiality interest in the information sought, that its confidentiality interest outweighs the requesting party’s need for the information, and that no accommodation would maintain confidentiality while providing the requesting party the information it seeks. In reversing the Administrative Law Judge, the Board gave considerable weight to the company’s promise of confidentiality, holding that such a promise was reasonable and serves the important purpose of encouraging witnesses to participate in investigations of workplace misconduct and protecting those witnesses from retaliation for their participation. The Board held that the employer met its obligation to offer an accommodation by providing the union with the names of those involved and those who it had interviewed. Since the Union already knew the substance of the complaint and the identities of the witnesses, the notes would, at most, provide corroboration.
      3. Section 7 Rights
         In TNT Logistics North America, 347 NLRB No. 55 (7/24/06), the Board, reversing the Administrative Law Judge, held that an employer did not violate the Act by terminating three truck drivers that it believed had sent a letter to the company’s corporate headquarters as well as its largest customer stating they had been asked to underreport their driving time. The Board concluded that the employees’ letter was concerted activity but that it lost any protection under the Act because the statements it contained regarding “fixing” the logbooks were maliciously false. The Board held that the “employees made the statement with knowledge of its falsity or at least reckless disregard for its truth.” A separate concurring opinion held that the letter was also unprotected because it publicly disparaged the company and subjected it to potential civil or criminal sanctions.
         
         Similarly, in Ogihara America Corp., 347 NLRB No. 10 (5/30/06), the Board held that an employee who forwarded an anonymous letter to management complaining that a maintenance facilitator was performing substandard work lost the protections of Section 7 of the Act by deliberately falsifying the name of the sender on the mailing package. Accordingly, the Board, reversing the Administrative Law Judge, found that the employer did not violate the Act when it interrogated and discharged the employee who sent the letter. In reaching its decision, the Board found that the employee also lost the Act’s protection because the deliberate falsification posed a substantial risk to the co-worker’s reputation and employment status.
         
         It is interesting to note that in the same decision, the Board upheld the Administrative Law Judge’s finding that the employer violated section 8(a)(1) of the Act when it told employees that unnamed plaintiffs had brought a lawsuit against the sender of the package and might seek additional monetary damages if they discovered the union was involved. The Board concluded that the threat of additional damages for union participation would tend to interfere with employee willingness to involve the union in workplace issues and would thereby restrain employees in the exercise of their Section 7 right to engage in union activity.
         
         Further, in Endicott Interconnect Technology, Inc. v. NLRB, D.C. Cir. No. 05-1371, (7/14/06), the U.S. District Court of Appeals for the District of Columbia held that public comments made by a factory employee who was fired for criticizing his employer were not protected by the Act. Overturning the NLRB’s decision against the employer, the court ruled that the employee’s communications were so disloyal to the company that they fell outside the protection of Section 7 of the NLRA.
         
         After acquiring a circuit board manufacturing facility, the company laid off approximately 200 employees. An employee who remained with the company was quoted in a local newspaper criticizing his employer's layoff decision and alleging that there were “gaping holes” in the business as a result. Although the company warned the employee that he would be discharged for making any further disparaging comments, he nevertheless posted a message on the newspaper-sponsored website accusing the company of mismanagement and, consequently, was terminated by the employer. While the Board found the conduct to be protected because it occurred in the context of recent layoffs and was therefore part of a labor dispute, and because it was not so disloyal, the court disagreed.
         
         In reversing the Board’s decision, the Court ruled that the Board had misapplied the Supreme Court standard set forth in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), under which an employee’s communication to a third party is deemed protected by the Act if it is: 1) related to an ongoing labor dispute and 2) not so disloyal as to lose the Act’s protection. The court held that the employee’s statements were so disloyal, disparaging and injurious to the company that they were not protected by the Act and the Board had erred in holding otherwise.
   2. Decisions Upholding Employee/Labor Organization Rights
      1. Section 7 Rights
         In Asheville School, 347 NLRB No. 84 (8/8/2006), the Board reiterated the longstanding principle that an employer is prohibited from implementing a work rule barring employees from discussing their wages. The Board’s finding is premised on the fact that employees have the right to discuss terms and conditions of employment for their collective benefit. However, in the same decision, the Board upheld the discharge of the employer’s payroll accountant for improper disclosure of wage and salary personnel records. The Board reasoned that the payroll accountant’s job duties included maintaining the confidentiality of such information and that her breach of such obligation warranted discharge.
         
         In QSI Inc, 346 NLRB No. 97 (4/28/06), the Board ruled that a cleaning service contractor violated Section 8(a)(1) of the Act when it discharged 14 employees who engaged in a walkout, physically assaulted them and threatened them with arrest by immigration officials. The employees had staged a walkout to protest, among other things, the termination of some managers and supervisors. Affirming the Administrative Law Judge, the Board concluded that the employees’ walkout was protected by Section 7 of the Act. In so holding, the Board affirmed that it does not impose a “reasonable means” requirement on employees’ concerted activity, but ruled that even if it were to apply such a requirement, the walkout was a reasonable means of protest. The Board found that it was reasonable for the employees to conclude that further discussion with the company was an ineffective means of protest. Further, the employees had no bargaining representative to present their grievances to the company. Finally, there was no evidence that the walkout posed a threat to health or safety.
      2. Labor Organization’s Right To Relevant Information
         In Nestle Purina Petcare Co., 347 NLRB No. 91 (8/16/06), the Board held that the employer violated Sections 8(a)(1) and (5) of the Act by refusing the labor organization representing its employees with access to one of its warehouses to conduct a time-and-motion study after forklift drivers complained about a work overload. Before filing an unfair labor practice charge, the union had filed a grievance seeking either a pay upgrade or a reduction of work for the forklift drivers who were laboring under a work overload and requested a time study to validate its claim and to determine whether the increased workload posed safety problems. In affirming the Administrative Law Judge’s finding that the union was entitled to access to the warehouse to conduct a time study, the Board held that the time study was relevant to the union’s proper representation of the forklift drivers and that the company failed to carry its burden of showing that there were alternate means by which the union could effectively represent the employees on this issue. Notably, the company had not shown that it had any data regarding the employees’ pace of work or that there were other categories of information that could be used to determine the pace of work. Since the company had failed to establish that its property rights should take precedence over the union’s right of reasonable access, the company was ordered to allow the union access at reasonable times.
         
         In Caldwell Mfg. Co., 346 NLRB 100 (4/28/06), the NLRB held that the employer’s failure to provide relevant information requested by the union prevented the employer from lawfully declaring impasse and implementing its final bargaining proposals. The specific information requested pertained to the data supporting certain factual representations the employer made in support of its proposals such as material costs, labor costs, manufacturing overhead, productivity calculations, competitor data, and data on possible new production. The employer denied the union’s request on the ground that it had not cited an inability to pay. The Board held that the requested information was relevant because it would have assisted the union in assessing the accuracy of the employer’s proposals and developing its own counterproposals. In reaching this conclusion, the Board pointed out that the union’s requests were in response to specific statements made by the employer during bargaining. This case points out the risks of declaring impasse when there are outstanding information requests.
2. Decisions Relevant to Union Organizing Campaigns
   The Board recently issued several decisions addressing the rights of employers, employees and labor organizations during a union organizing campaign.
   1. Appropriate Bargaining Units
      The NLRB’s usual presumption in representation cases is that employees at a single facility constitute an appropriate bargaining unit. However, in Prince Telecom, 347 NLRB No. 73 (7/31/06), the Board rejected a single-facility unit, finding that a broader unit consisting of four facilities in the New York metropolitan area was more appropriate. Since the union had not indicated that it was willing to proceed to an election with the broader unit, its petition for election was dismissed.
      
      In considering whether a multi-site unit is appropriate, the Board noted that it considers the following factors: central control over daily operations and labor relations and the extent of local autonomy; similarity of employee skills, functions and working conditions; the degree of employee interchange; the distance between the locations; and the bargaining history, if any. Here, the Board found that the employer had rebutted the presumption of a single-facility unit and found a multi-site unit appropriate, since the company had a high degree of centralization of its daily operations and labor relations, there existed a similarity of skills, functions and working conditions of employees throughout the New York area, there was evidence of permanent and temporary employee transfers within the New York area and there was no history of collective bargaining.
   2. Photographing Of Employees
      In Randell Warehouse of Arizona Inc., 347 NLRB No. 56 (7/26/06)), the Board recently held that a union’s photographing of employees during an election campaign is subject to the same standard imposed on an employer. The Board overturned a 1999 decision which created different standards for evaluating the legality of photographing by unions and employers in a pre-election setting. Pursuant to the 1999 decision, union photographing of employees was lawful during a campaign if such photographing was unaccompanied by an expressed or implied threat or other coercion, while employer photographing was presumptively coercive, even if it was not accompanied by a threat or coercion. In reaching its decision, the Board ruled that unexplained photography can interfere with employee free choice regardless of whether the union or the employer does so. Therefore, a union’s photographing of employees who were offered union literature, without offering them an adequate explanation, constitutes objectionable conduct. The Board held that the inherent potential of unexplained photographing by employers or unions to interfere with the employee right of free choice outweighs any legitimate interests in using photographing as a campaign tool.
   3. Other Decisions Addressing Alleged Objectionable Conduct
      In Winkle Bus Co., Inc. 347 NLRB No. 108 (8/31/06), the Board affirming the Administrative Law Judge, ruled, inter alia, that the employer violated Section 8(a)(1) of the Act by distributing to its employees a letter that stated, in pertinent part: “If you are being threatened or coerced by employees or the Union, please contact the National Labor Relations Board’s Hartford Office at [telephone number] immediately or tell me.” The Board, in agreement with the Administrative Law Judge, found that this statement was unlawful because it impermissibly called on employees to report on their coworkers’ union activity. Presumably, the statement would have been lawful if employees only were advised to contact the Board if they felt threatened; however, the decision is not express as to this point.
      
      In Longs Drug Stores California Inc., 347 NLRB No. 45 (6/28/06), the Board adopted the Administrative Law Judge’s findings that the employer violated Section 8(a)(1) of the Act by maintaining overbroad confidentiality provisions in its employee handbooks during a representation campaign in which the employer prevailed. The relevant handbook provisions prohibited employees from disclosing confidential information, which included a discussion of wages. While the Board, consistent with precedent, found such prohibitions to be unlawful, the Board held that the employee handbook provisions had no effect on the election. Further, there was no evidence that the provisions were ever enforced or that the employer called attention to the provisions during the pre-election period.
   4. Eligibility To Vote In Representation Election
      In Home Care Network Inc., 347 NLRB No. 80 (8/2/06), the Board upheld the existing standard regarding whether an absent employee may vote in a representation election. The Board reiterated that an employee who is out on sick or disability leave is eligible to vote in an election, absent a showing that the employee has resigned or been discharged. Here, at issue was the eligibility to vote of three home health aides who were out on sick or disability leave during an election that resulted in a tie. It was undisputed that the aides were not absent without leave, had not resigned and had not been terminated. Chairman Robert J. Battista proposed that the appropriate test be whether the absent employee, as of the day of the election, has a reasonable expectancy of returning to his or her unit employment. In rejecting Chairman Battista’s proposal and applying the “predictable, bright-line rule” articulated in Red Arrow Freight Lines, 278 NLRB 965 (1986), the Board found that the employees were eligible voters and that their ballots should be counted.
3. Decisions Pertaining To An Employer's Bargaining Rights and Obligations
   The Board recently also has issued numerous decisions pertaining to employers’ bargaining rights and obligations.
   1. Right To Withhold COLA
      In Neighborhood House Association, 347 NLRB No. 52 (6/30/06), the Board held that an employer did not violate the Act when it withheld a regularly scheduled cost-of-living adjustment during negotiations for a first contract. The employer had a five year practice of granting its employees an annual COLA pay increase. During bargaining, the employer conditioned implementation of a proposed COLA increase on the union’s waiver of its right to negotiate an additional COLA increase for that year. When the union refused, the regularly scheduled COLA was withheld from unit employees.
      
      The Board found the employer had bargained in good faith. Reversing the Administrative Law Judge, the Board held that the COLA constituted a discrete recurring event that was scheduled to occur during negotiations for an initial contact, and therefore fell under an exception to the general rule that requires an employer to maintain the status quo of mandatory bargaining subjects absent impasse. Since the employer fell within the exception set forth in Stone Container Corp., 313 NLRB 336 (1993), it was free to implement a change in a term or condition of employment so long as it provided the union with reasonable advance notice and an opportunity to bargain over the proposal. The Board concluded that the employer had met these obligations.
   2. Mandatory/Permissive Subjects Of Bargaining
      In North American Pipe Corp., 347 NLRB No. 78 (7/31/06), the Board, affirming the Administrative Law Judge, held that a company's award of 100 shares of stock to its employees was a gift that the company could distribute unilaterally, rather than a mandatory subject of bargaining. The stock, valued at approximately $1,450 when offered, was awarded to all eligible employees in conjunction with an initial public offering of the company’s parent corporation. In concluding that the stock award constituted a gift, rather than wages, and that there had been no violation of Sections 8(a)(5) and (1) of the Act, the Board was swayed by several factors: the award was not tied to employee remuneration; the size of the award was unrelated to employment-related factors, including work performance, wages, hours worked, seniority or productivity; all eligible employees received the same amount of stock; and the award was a one-time event with no promise or prospect of repetition. Although the value of the awarded stock had increased to approximately $3,000 by the time the case was heard, the Board held that a distinction between a gift and wages does not turn on the value involved. The fact that the company withheld taxes from the stock award was also insufficient to convert the award from a gift to wages.
      
      In Utility Vault Co., 345 NLRB No. 4 (8/22/05), the Board, affirming the Administrative Law Judge, ruled that the employer violated Sections 8(a)(1) and (5) of the Act by failing to bargain collectively with a union and unilaterally implementing a Dispute Resolution Process, which required employees to arbitrate claims, such as wrongful termination and failure to pay wages or benefits. The Board held that such a dispute resolution process was a mandatory subject of a bargaining. Moreover, the Board found that the employer violated the Act by requiring employees to: (1) execute waivers of their rights to take legal action with respect to their hire, tenure, and terms and conditions of employment, to the extent that such waivers applied to the filing of Board charges; and (2) sign the agreement as a condition of employment (since the latter was “direct dealing” which undermined the union’s position as the employees’ exclusive bargaining representative).
   3. Good Faith Bargaining
      In Garden Ridge Management Inc., 347 NLRB No. 13 (5/31/06), the Board ruled that a company’s refusal to meet more frequently with the union during bargaining negotiations for an initial contract did not constitute surface bargaining and that the company legally withdrew union recognition. Reversing the Administrative Law Judge’s findings, the Board acknowledged that it was a close case, but declined to infer an intention to avoid reaching an agreement from the company's failure to meet more frequently than the 20 occasions during which it met with the union over 11 months. Although the Board ruled that the refusal to schedule more frequent negotiations was unlawful, it found no causal connection between the unfair labor practice and the loss of union support based on an employee petition. Bifurcating the duty to meet at reasonable times from the duty to confer in good faith, the Board held that a party’s failure to meet more frequently did not necessarily mean that it did not intend to reach an agreement. The Board found that the employer did not engage in surface bargaining, noting that there is no obligation that employers make concessions or reach an agreement on particular proposals. The Board also found no evidence that the scheduling disputes caused disaffection toward the Union, and therefore no basis to conclude that the employer unlawfully withdrew union recognition.
   4. Successorship
      In Planned Building Services, 347 N.L.R.B. No. 64 (7/31/06), the Board addressed the vexing issue of whether an employer can legally avoid successorship obligations when purchasing or taking over unionized operations. In clarifying the applicable standard in "successorship-avoidance" cases, the Board ruled that the framework adopted for discriminatory refusal-to-hire cases is not appropriate in the successorship context. Instead, the proper standard is the traditional burden-shifting one set forth in Wright Line, 251 NLRB 1083(1980).
      
      After an employer won cleaning service contracts at four buildings, it admitted that one of its reasons for not hiring most of its predecessor’s employees was to avoid the obligation to recognize the union. The Board held that to meet its initial burden in a successorship case, a union merely has to prove that an employer failed to hire employees of its predecessor due to union animus or protected activity. Once that burden is met, the successor employer must prove it would not have hired the incumbents in any event, in order to avoid liability. [See http://www.jacksonlewis.com/legalupdates/article.cfm?aid=981] In W & M Properties of Connecticut, Inc., 348 NLRB No. 11 (9/20//06), the Board applied the new standard set forth in Planned Building Services.
   5. Interpretation Of Collective Bargaining Agreements
      In Horizon Group of New England, 347 NLRB No. 74 (7/31/06), the Board held that a construction company that signed a short-form agreement incorporating a statewide collective bargaining agreement violated the Act when it refused to honor the contractual terms at other job sites. The short-form agreement expressly incorporated the Laborers District Councils’ bargaining agreement, which clearly stated that it was binding on all jobsites in New Jersey and was not limited to a job-only agreement. The company alleged “fraud in the execution” because a union representative misrepresented that the short-form agreement was part of a Project Labor Agreement, when it was not. The PLA required only that the employer use union labor at the particular site.
      
      The Board, affirming the Administrative Law Judge, rejected the employer’s defense that its signature on the short-form agreement was procured by “fraud in the execution.” The Board found that the company signed the agreement to avoid “trouble” with the union and to ensure it received union referrals, not because it relied on the union’s misrepresentation. The company’s attempt to terminate the agreement when the work at the specific site ended was further proof that it knew that it was obligating itself to a statewide agreement. The Board further determined that there was no excusable ignorance of the agreement’s contents because the company had a reasonable opportunity to review the document before signing it and the provisions were unambiguous.
      
      In Teamsters 688 (Frito-Lay, Inc.), 345 NLRB No. 96 (9/30/05), the Board addressed the scope of a no-strike clause contained in a collective bargaining agreement and its interaction with a picket line clause contained in the same agreement. The agreement’s no-strike clause contained several exceptions, but none for sympathy strikes. The picket line clause stated the employer could not discipline employees for honoring a lawful picket line. The union compelled its member to honor a picket line at locations to which bargaining unit employees made deliveries. The Board held that the picket line clause did not create an exception to the no-strike clause to permit sympathy strikes. The Board explained that the picket line clause “protects the employee who wishes to honor the picket line” whereas the no-strike clause “prohibits the Union from authorizing employees to not perform work.” This decision provides a meaningful distinction between otherwise inconsistent contract terms.
      
      In Long Island Head Start Child Development Services v. NLRB, 2d Cir., No. 05-5723 (8/9/06), the Second Circuit Court of Appeals ruled that negotiations that took place between an employer and a union did not prevent a contract’s automatic renewal pursuant to an evergreen clause when neither party provided the requisite notice to terminate or modify the agreement.
      
      During the course of negotiations, which commenced despite neither party providing contractual notice that it wished to terminate or modify the contract, the company unilaterally changed its employees’ health insurance carrier, as allowed under the contract, and the union filed an unfair labor practice charge. In determining whether the employer violated its duty to bargain in good faith when it unilaterally changed the employees’ insurance carrier, the Board had concluded that the contract did not automatically renew due to the parties’ negotiations and therefore that the employer violated its duty to bargain when it changed carriers. At issue before the court was whether the NLRB had established that the conduct of negotiations alone stopped the operation of the evergreen clause. In vacating the NLRB decision and remanding the case, the appeals court held that the conduct of the parties did not supplant their failure to conform to the express notice requirements of the contract to forestall its automatic renewal.
4. Withdrawal of Recognition
   The Board has continued to uphold an employer’s right to withdraw recognition from a labor organization but only if specific prerequisites have been met.
   
   In Highlands Hosp Corp., 347 NLRB No. 120 (8/31/06), the Board, affirming the Administrative Law Judge, held that the employer unlawfully withdrew recognition from the union based on the filing of a decertification petition. The Board reasoned that that the employer did not demonstrate actual loss of majority status by the union since the decertification petition did not request the employer to withdraw recognition and it was clear that the petition was filed and signatures collected solely for the purpose of requesting an election. The Board held that an affirmative bargaining order was the only appropriate remedy.
   
   In Parkwood Developmental Center, 347 NLRB No. 95 (8/25/06), the Board held that the employer committed an unfair labor practice by withdrawing union recognition the day a collective bargaining agreement expired. Three months previously, the company had received a petition signed by a majority of the bargaining unit employees stating that they no longer wished to be represented by the union. In response, the company sent a letter to the union indicating that it planned to withdraw recognition when the contract expired. The union then asked employees to sign a petition authorizing the union to represent them and to sign authorization cards, which it presented to the company the day before the contract expired.
   
   Overruling the Administrative Law Judge, the Board held that the company did not have evidence that the union had lost its majority status on the date it withdrew recognition. The Board made clear that a union enjoys a continuing presumption of majority status during the life of a collective bargaining agreement and that an employer may follow through on its anticipatory withdrawal of recognition only if it can prove actual loss of majority support on the date recognition is subsequently withdrawn.
   
   In Nott Co. , 345 NLRB No. 23 (8/27/05), the Board held that an employer did not violate Sections 8(a)(1) and (5) of the Act by: (1) failing to comply with its collective bargaining agreement; and (2) withdrawing recognition from the union and repudiating the collective bargaining agreement. The employer had a 40-year collective bargaining relationship with the union. During the term of the agreement, the employer purchased the assets of a non-union company and hired its 14 employees, subsequently closing that company’s original facility and consolidating the entire operation at the main facility. Subsequently, the company repudiated its contract with the union and withdrew recognition, claiming that because of the addition of the employees from the newly acquired business, the union no longer represented a majority of the bargaining unit employees. The Board held that the unrepresented group was equal in number to the existing represented group (14 former employees and 14 newly hired employees). Accordingly, the Board found that the company lawfully had withdrawn recognition because the union lost majority status once the newly hired employees joined the bargaining unit at the main location.
5. Enforcement of Neutrality Agreements
   In Marriott Hartford Downtown Hotel, 347 NLRB No. 87 (8/8/06), the Board granted review of a Regional Director’s decision dismissing an employer’s petition seeking a representation election to determine whether its employees wanted union representation. UNITE HERE Local 217 had sought a labor peace agreement prior to beginning an organizing campaign at the hotel.
   
   In granting the review, the Board emphasized that its purpose was to ascertain the best method for effectuating employees’ rights to unionize or to refrain from unionizing. The Board found there was a genuine issue as to whether the union was requesting an agreement for card-check recognition and whether such a request was a request for recognition. The policy issue at stake was whether an election or credit-check recognition is the better way to ascertain employee free choice. The Board noted that this case presents many of the same issues currently under Board review in other cases. In fact decisions, from the Board in a series of cases relevant to this issue are expected to be issued in the near future.
6. Union Liability For Unlawful Activity
   Labor organizations continue to use all means necessary to contact employees. In Pichler v. UNITE , E.D. Pa., No. 04-2841, (8/30/06), a federal court judge held that UNITE HERE’s use of motor vehicle records and license plate numbers to obtain home addresses of employees it was trying to organize violated the federal Driver's Privacy Protection Act of 1994. The court awarded liquidated damages to each of the plaintiffs. This case demonstrates that labor organizations do not have unfettered rights.

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