Tuesday, October 9, 2007

NLRB issues quartet of lead cases

While this blog focuses primarily on employment law issues, the National Labor Relations Board has had a busy October thus far, issuing four significant decisions that merit some discussion.

In Toering Electric Co., the NLRB ruled that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer in order to qualify as an "employee" under the meaning of the National Labor Relations Act, and thus be protected against hiring discrimination based on union affiliation or activity. The Board explained, "One cannot be denied what one does not genuinely seek.... Submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity. Indeed, such conduct manifests a fundamental conflict of interests ... between the employer's interest in doing business and the applicant's interest in disrupting or eliminating this business."

In BK & E Construction Company, the NLRB held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act, regardless of whether the lawsuit is ongoing or completed and regardless of the the motive for bringing the suit. While recognizing that the filing of a lawsuit against a labor union or an employee could be a powerful instrument of coercion or retaliation, the Constitutional right to petition courts is too important to be called an unfair labor practice. According to the NLRB, the prospect of liability for an unfair labor practice would reasonably tend to chill a litigant from exercising that fundamental First Amendment right to petition the courts. Thus, as long as the lawsuit is not objectively baseless, or if no reasonable litigant could realistically expect to succeed, the filing of the lawsuit does not constitute an unfair labor practice.

In Jones Plastic & Engineering, the NLRB held that at-will employment status does not detract from an employer’s otherwise valid showing that it has permanently replaced striking employees. In other words, the mere fact that a replacement worker is hired "at-will" and told that their employment was for "no definite period" and could be terminated for "any reason" and "at any time, with or without cause" did not detract from the showing of permanent replacement status. The dispositive issue remains whether there was a mutual understanding with the replacement employees that they would not be displaced by returning strikers at the end of the strike, and not whether the replacements are at-will employees.

Finally, in Dana Corp., the Board modified its recognition-bar doctrine, and held that an employer’s voluntary recognition of a labor organization does not bar a decertification or rival union petition that is filed within 45 days of the employer's recognition notice. The Board will process the petition if, like other petitions, it is supported by 30% of the bargaining unit.

Toering Electric is probably the most significant of these four policy-making decisions, as it deals a serious blow to the popular union organizing tactic known as "salting". Salting is when a union sends members undercover (known as "salts") to seek employment from a nonunion employer with the intent of obtaining employment and then organizing the employer's employees. Now, if the employer discharges or refuses to hire the salt because of his union affiliation or activity, the employer's conduct can be lawful if the employer can present evidence that puts at issue the genuineness of the applicant's interest in going to work for that employer.