Operations In Fiscal Year 1988 - National Labor Relations Board

Unfair Labor Practices 69need under the circumstances so as to trigger the employer'sburden of explanation. In his view, the fact that the employeewas known to be the principal union organizer and had been requestedby the union to attend as its "observer," indicated thatthe employee had an interest beyond mere curiosity in attending.Such circumstances, he concluded, triggered at least a burden ofinquiry on the part of the employer to determine if some reasonableaccommodation could be made. Accordingly, as the employerhad simply rejected the employee's request without explanation,and made no claim that the employee's absence on unpaidleave would have actually caused a disruption of production, hefound that the balance weighed against the employer and that aviolation of Section 8(a)(1) had been established.B. Employer Assistance to UnionIn Flatbush Manor Care Center," a panel majority reversedthe administrative law judge's fmding that, after the union's certificationby the Regional Director, the employer violated Section8(a)(2) and the union violated Section 8(b)(1)(A) based on theemployer's recognition of the union in a technical, service, andmaintenance unit and their execution of collective-bargainingagreements. Several months after the contracts were enteredinto, another union filed charges asserting that the recognitionwas premature and that payments to employees by the certifiedunion were unlawful. Prior to commencement of a scheduledNotice to Show Cause proceeding, the certified union withdrewits petition and the Regional Director revoked the certificationretroactive to the date of recognition.The judge applied the Herman Bros. test39 for premature recognitionand found the reciprocal violations based on the factthat at the time of recognition the employer was not engaged innormal business operations and had not employed a substantialand representative complement of its projected work force.However, a panel majority, though fully aware of the retroactiverevocation, pointed out that the judge had failed to consider theeffect of the union's status as a Board-certified representative atthe time of recognition. The majority held that, viewing the situationas the parties saw it immediately following the certification,and in the absence of fraud or collusion, it would not fmd prematurerecognition violations when either of the parties by actingotherwise could have subjected itself to unfair labor practicecharges based on a refusal to bargain in the presence of a thenvalidBoard certification. Therefore, the majority also dismissedderivative 8(a)(3) and 8(b)(2) allegations concerning contractualunion-security and dues-checkoff provisions.88 287 NLRB No. 48 (Chairman Dotson and Member Johansen; Member Stephens dissenting inWO.39 Hermon Bros., 264 NLRB 439 (1982).