Recent Board Decisions Reflect Different Styles of Dissenting

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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The National Labor Relations Board (NLRB) recently issued two significant decisions on the same day (May 9) that highlight contrasting methods of issuing dissents. Both decisions drew dissents from one member of the three-member panels that issued the decisions. However, in one of the cases, Durham School Services, LP, Board Member Philip Miscimarra wrote a fully explicated separate dissent immediately following the majority opinion. Conversely, in Washington Hospital Center Corporation d/b/a Medstar Washington Hospital Center, Board Member Harry Johnson’s concisely-stated departure from the majority’s decision was merely noted in a footnote at the outset of the majority opinion, without mention of the term, “dissent.”

Durham School Services, LP

In Durham School Services, LP, 360 NLRB No.108, the Board majority ruled that it was not objectionable conduct for a union to falsely portray and inaccurately publicize an employee’s sentiment on union representation—by publishing her photograph as a “yes” vote supporting the union—prior to a secret ballot election. On the day before the union representation election, which the union won, the union distributed a flyer with the photographs of employees with the caption “WE’RE VOTING YES” for the union. The photograph of one employee, April Perez, was among those on the flyer even though she did not support the union. In refusing to find the union’s false and misleading publication of her sentiments as objectionable conduct, the Board majority (Chairman Mark Gaston Pearce and Member Nancy Schiffer) relied on Midland National Life Insurance Co., 263 NLRB 127 (1982), which is premised on the idea that “employees are capable of recognizing campaign propaganda for what it is.” In Midland, the Board stated that its standard “removes impediments to free speech by permitting parties to speak without fear that inadvertent errors will provide the basis for endless delay or overturned elections.”

Board Member Miscimarra dissented noting that the Midland standard does not apply where the propaganda “renders the voters unable to recognize the propaganda for what it is.” He observed that publicizing how an employee intends to vote undermines the privacy of secret ballot elections. He also noted that inaccurately identifying union supporters may deceptively induce other employees to support the union or, by exaggerating the extent of union support, cause union opponents to refrain from voting. Member Miscimarra proposed a “common sense” alternative standard under which a party that publicizes how specific employees intend to vote is considered to have engaged in objectionable conduct unless the party obtains express consent from those employees to disclose how they intend to vote.

The dissent not only provides a persuasive argument for reviewing courts should the employer intend to engage in a technical 8(a)(5) by refusing to bargain to test the Board’s certification, it also provides a common sense alternative Board standard for preventing future misconduct.

Medstar Washington Hospital Center

Medstar Washington Hospital Center, 360 NLRB No. 103, included a footnote stating that Board Member Harry Johnson did not join the Board majority in ordering the employer’s immediate release of certain confidential information requested by the union. The Board majority found that the employer’s refusal to provide the union with requested employee peer review surveys violated section 8(a)(5) of the National Labor Relations Act  and ordered the employer to immediately release the information to the union. Noting that under section 44-805 of the D.C. Code, the information was classified as “confidential”, footnote 1 of the Board’s decision stated that the employer had failed to timely assert confidentiality. Member Johnson agreed that the employer violated section 8(a)(5) by failing to engage in “accomodative bargaining” concerning the information but differed from the Board majority (Chairman Pearce and Member Schiffer) and stated that he would not have ordered the immediate release of the confidential information. According to the footnote, Member Johnson’s view was based on the purpose of the D.C. law regarding reports of peer review bodies since such reports raise issues of confidentiality and privilege, which serve the important public policy of improving patient outcomes for all.

Conclusion

These two cases demonstrate different methods of dissenting from Board decisions. The purpose of a dissent, of course, is hopefully to attract the attention of a reviewing court and serve as the basis for reversing the majority on appeal. While both may count as a “dissent” from the majority opinion, clearly a fully developed written dissent is more likely to attract attention and gives a reviewing court a stronger basis on which to issue a potential reversal. There are a number of issues in the Board’s pipeline that will be issued soon and will most likely require strong dissents.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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