On December 22, 2011, the NLRB issued three unanimous decisions that are interesting but not earth shattering or surprising, given the facts.
The first decision deals with the new default language which the Acting General Counsel is requiring in settlement agreements under GC Memorandum 11-04 (January 12, 2011) and GC Memorandum 11-10 (March 30, 2011). It is the first decision testing the new language. The Board unanimously ruled against the Acting General Counsel’s motion for summary judgment, finding that the respondent employer had raised a genuine factual dispute regarding whether it had violated the settlement agreement. Vocell Bus Company, Inc, 357 NLRB No. 48.
The second decision held that calling the police to clear pickets from a public sidewalk did not constitute petitioning the government under the Noerr-Penington doctrine, which is reserved for petitioning policy makers to make a significant decision about the application of a law, or petitioning law makers to enact a certain law. Thus, if the call to the police otherwise violates 8(a)(1) as an interference with protected conduct, it is not saved by Noerr-Pennington. The decision was issued in response to a question posed on remand by the DC Circuit. Venetian Casino Resort, LLC, 357 NLRB No. 147.
Finally, in likely the only case that will ever to be decided under the Board’s decision in Dana Corp., 351 NLRB 434 (2007) (overruled earlier this year by Lamons Gasket Co., 357 NLRB No. 72 (2011)), the Board decided that a competing petitioning union displaced the voluntarily recognized union, following a secret ballot election. The irony, of course, is that this is exactly the type of protection for employees (and validly competing unions) that was envisioned under the Dana decision. Columbus Transit, LLC, 357 NLRB No. 146.