Union Relations: The NLRB's Semptember Hat Trick Benefits Employers

Suing Unions Just Got Safer. The NLRB recently rejected (in a 3-2 vote) its former position (which had already been rejected by the Supreme Court) and held “that the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of the motive for bringing it.” BE&K Construction Co., 351 NLRB No. 29 (9/29/07). In that case, the NLRB had previously held that the employer violated the NLRA when it sued a union and lost on summary judgment because the lawsuit had been brought in retaliation for the union campaigning against the employer’s receipt of a lucrative contract in 1987 (by, among other things, lobbying government agencies and politicians, handbilling, picketing, filing frivolous grievances against business partners and filing state court lawsuits, etc.). The NLRB had ordered the employer to pay the union’s legal fees in defending against the lawsuit, but was reversed on appeal. The Supreme Court had previously held in Bill Johnson’s, that, with respect to ongoing litigation, “[t]he filing and prosecution of a well-founded lawsuit may not be enjoined as an unfair labor practice, even if [the suit] would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the Act.” The Board recognized that the U.S. Constitutional guarantee of the right to petition government is sacred (even for unfeeling employers) and cannot be limited by restrictions on reasonable lawsuits. Only when the plaintiff has no hope of recovering could a retaliatory lawsuit constitute an unfair labor practice. The result is the same whether the litigation is pending or has been concluded. Insomniacs can read the full decision at: http://www.nlrb.gov/research/decisions/board_decisions/template_html.aspx?file=http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.htm&size=188

Employee Choice Trumps Giving Union a Free Ride; Neutrality Agreements Aren’t What They Used to Be. The NLRB recently held that the recognition bar and the contract bar would no longer apply for the first 45 days after an employer voluntarily recognizes a union based on a card check (i.e., without a secret ballot vote) and that, as a result, employees could file decertification petitions in the 45 days following a voluntarily recognition of a union based on a card-check. Dana Corp., 351 NLRB No. 28) (9/29/07). This right to seek decertification is not affected by any collective bargaining agreement which the employer reaches with the union (following good faith bargaining as required following the voluntarily recognition of the union). Indeed, if the parties fail to provide employees of notice of their right to seek decertification for 45 days, neither the recognition bar nor the contract bar will not prevent any future election (for decertification or for a rival union).

In that case, the two employers entered into neutrality and card check agreements with the UAW. Within 35 days of recognizing the unions, employees in both units filed de-certification petitions with the NLRB. The applicable Regional Directors dismissed both petitions “based on an application of the Board’s recognition-bar doctrine” (i.e., , “an employer’s voluntary recognition of a union, in good faith and based on a demonstrated majority status, immediately bars an election petition filed by an employee or a rival union for a reasonable period of time. A collective-bargaining agreement executed during this insulated period generally bars Board elections for up to 3 years of the new contract’s term.”) The Board recognized that:

"the immediate post-recognition imposition of an election bar does not give sufficient weight to the protection of the statutory rights of affected employees to exercise their choice on collective-bargaining representation through the preferred method of a Board-conducted election.

"In order to achieve a “finer balance” of interests that better protects employees’free choice, we herein modify the Board’s recognition-bar doctrine and hold that no election bar will be imposed after a card-based recognition unless (1) employees in the bargaining unit receive notice of the recognition and of their right, within 45 days of the notice, to file a decertification petition or to support the filing of a petition by a rival union, and (2) 45 days pass from the date of notice without the filing of a valid petition. If a valid petition supported by 30 percent or more of the unit employees is filed within 45 days of the notice, the petition will be processed. The requisite showing of interest in support of a petition may include employee signatures obtained before as well as after the recognition. These principles will govern regardless of whether a card-check and/or neutrality agreement preceded the union’s recognition.

"Modifications of the recognition bar cannot be fully effective without also addressing the election-bar status of contracts executed within the 45-day notice period, or contracts executed without employees having been given the newly- required notice of voluntary recognition. Consequently, we make parallel modifications to current contract-bar rules as well such that a collective-bargaining agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and 45 days have passed without a valid petition being filed."


Union Salts No Longer Automatically Protected by the NLRA.

For many decades, some non-union employers have attempted to discourage union organization of their workforce by refusing to hire qualified union organizers that apply for work. These union organizers are paid by a union to apply to work at a non-union employer and, in addition to the wages paid by the non-union employer, are also paid by the union. Some of these “salters” also are suspected of attempting to disrupt the operations of the non-union employer so that it will not be as profitable as union employers and will “go on strike” rather than resign so as to protect re-employment rights. However, the Supreme Court has made clear that paid or unpaid union organizers are still considered to be employees under the NLRA. Town & Country Elec., Inc. v. NLRB, 116 S. Ct. 450 (1995). Refusing to hire an applicant because he or she has formerly worked for a union employer or is suspected of being a union organizer violates the NLRA. See e.g., NLRB v. Fluor Daniel, Inc., 102 F.3d 818 (6th Cir. 1996).

Nonetheless, earlier this year, the NLRB limited back pay awards to salters who had been unlawfully terminated on the grounds that, among other things, they would not have remained employed long at a non-union employer or after their aim of unionizing the workforce had been achieved. In other words, there is only a rebuttable presumption of indefinite employment in salting ULP cases and the NLRB General Counsel bears the burden of proving the appropriate period of back pay. Oil Capital Sheet Metal, Inc., 349 NLRB No. 118 (2007). See also,, Aneco Incorporated, v. National Labor Relations Board, 285 F.3d 326 (4th Cir. 2002).

Moreover, in September 2007, the NLRB went further and placed upon the Board’s General Counsel the burden of proving that the “salt” was genuinely interested in obtaining employment when s/he submitted a job application. Toering Electric Co., (9/29/07). The Board noted that job applicants are protected from discrimination in employment on the basis of their union activities. However, the Board then determined that “applicants” only include individuals who are genuinely interested in employment and are not motivated simply by the desire to file a ULP Charge if they are denied employment.

The Board felt that this ruling was necessary because some unions had “submitted batched applications on behalf of individuals who were neither aware of the applications nor interested in employment opportunities with the employer. In other cases, individuals submitted applications but were not interested in obtaining employment with the employer. Their applications, sometimes accompanied by conduct plainly inconsistent with an intent to seek employment [such as omitting any work history], were submitted solely to create a basis for unfair labor practice charges and thereby to inflict substantial litigation costs on the targeted employer. The absence of a clear and consistently applied requirement that the General Counsel must prove an applicant’s genuine interest in securing employment has opened the door to these abusive tactics. By imposing this requirement under FES, we shall prevent those who are not in any genuine sense real applicants for employment from being treated by the Board as if they were.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney. Insomniacs can read the full decision at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35118.pdf.