NLRB Clarifies Analysis for Determining an Objectionable Grant of Pre-Election Hiring Hall Benefits | Practical Law

NLRB Clarifies Analysis for Determining an Objectionable Grant of Pre-Election Hiring Hall Benefits | Practical Law

In Jam Productions, Ltd., the National Labor Relations Board (NLRB) articulated the standard to be applied when evaluating whether a union's grant of hiring hall benefits to potential voters during the critical period before a union representation election constitutes objectionable conduct that could warrant setting aside an election.

NLRB Clarifies Analysis for Determining an Objectionable Grant of Pre-Election Hiring Hall Benefits

by Practical Law Labor & Employment
Law stated as of 27 Apr 2023 • USA (National/Federal)
In Jam Productions, Ltd., the National Labor Relations Board (NLRB) articulated the standard to be applied when evaluating whether a union's grant of hiring hall benefits to potential voters during the critical period before a union representation election constitutes objectionable conduct that could warrant setting aside an election.
On September 30, 2021, in Jam Productions, Ltd., the panel (Board) heading the National Labor Relations Board's election functions articulated the standard to be applied when evaluating whether a union's grant of hiring hall benefits to potential voters during the critical period before a union representation election constitutes objectionable conduct that could warrant setting aside the election. Specifically, the Board adopted the following two-step analysis:
  • First, an objecting employer must prove that the hiring hall benefit was not one to which the eligible voters were otherwise entitled. Consistent with relevant Board and Seventh Circuit precedent, this burden can be met by presenting evidence that, among other things:
    • the eligible voters received favorable treatment;
    • the grant of benefits deviated from the status quo or the union's normal practice; or
    • the eligible voters were treated differently from others with respect to accessing the referral system.
  • If the employer meets this initial burden:
    • the Board draws an inference that the granted benefits were coercive (see B & D Plastics, Inc., 302 N.L.R.B. 245 (1991)); and
    • the burden shifts to the union to rebut this inference by explaining the basis for the timing of the grant other than the pending election.
Applying this framework to the instant case, the Board affirmed the Regional Director's decision overruling the employer's objection, concluding that:
  • The employer failed to prove that the union provided hiring hall referrals to potential voters to which they otherwise were not entitled and therefore did not show the union impermissibly tended to influence the election's outcome.
  • Even if the increase in referrals during the critical period were construed to constitute a grant of benefits, the union's alternative explanation for the increase—that is, that it were based on the union's busy season—was sufficiently supported in the record to rebut any inference of coercive election-related timing or purpose under the B & D Plastics framework.
(371 N.L.R.B. No. 26 (Sept. 30, 2021).)
The Board's decision in Jam Productions. Ltd. expressly reconciles decisions in cases involving allegedly improper employment-related benefits granted by a union during the pre-election critical period, including hiring-hall related benefits, with the B & D Plastics analytical framework for assessing other types of grants or promises relating to union membership itself.

UPDATE:

On April 27, 2023, the Seventh Circuit granted enforcement of the Board's order, upholding the Board's reconciled standard as a reasonable clarification of the law (NLRB v. Jam Prods., Ltd., (7th Cir. Apr. 27, 2023)).