In the highly unlikely event that the push to pass the Employee Free Choice Act fails to generate any legislative labor law reform this year, there will still be significant changes in the law for which employers must be prepared.  President Obama last week took the first steps toward filling the three existing vacancies on the National Labor Relations Board by announcing his intended nominees — SEIU counsel Craig Becker and New York union attorney Mark Pearce.  If confirmed, these two men will join Chairwoman Wilma Liebman as a majority bloc distinctly in favor of expanding the rights of unions and workers.  This Board is certain to reverse several precedents set by the previous administration’s Board.

Employers wondering what decisions might be considered high priority for such attention should look to the many Board decisions issued during September 2007.  Issued in the closing weeks of then Chairman Battista’s term, many of these decisions split as 3-2 votes.  Each modified existing Board law, and each contained a strong dissent by the current Chairwoman.  They provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board.  Chairwoman Liebman testified at one such hearing, and provided her insight on some of these cases. 

Among the issues likely to be revisited are those addressed in the following September 2007 cases:

  • In Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative will not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) can file a petition soon after an employer voluntarily recognizes a union, and in a departure from its past practice, the Board will not dismiss the petition as barred. Following the 45 day period, the recognized union still enjoys a presumption of majority status for a "reasonable" period of time.
  • In Toering Electric Co., 351 NLRB No. 18 (Sept. 29, 2007), the Board significantly altered its standards in “salting” cases. Salting occurs when a union organizer seeks employment at an employer solely for the purpose of organizing the other employees and obtaining recognition of the union. Often "the salt" works solely to provoke the employer into conduct which then forms the factual basis for organizing propaganda and unfair labor practice charges. After the organizing effort, the salt often quits and moves on to another workplace. Until this decision, the practice was entirely lawful and salts were protected from discriminatory refusals to hire, or terminations, on the basis of their union activities. In Toering, however, the Board placed on the General Counsel the ultimate burden of proving an individual’s genuine interest in seeking to establish an employment relationship with the employer. Now, those individuals who do not genuinely seek an employment relationship do not qualify as “employees” protected by the Act.
  • In Jones Plastic & Engineering, 351 NLRB No. 11 (Sept. 27, 2007), the Board clarified that advising strike replacement workers that they are employed “at-will” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. Economic strikers who make unconditional offers to return to work are entitled to immediate reinstatement unless the employer has hired a permanent replacement for the worker during the strike. In order to avail itself of this position, however, the employer must establish that there was a mutual understanding between the employer and the replacement worker that the replacement was “permanent.” A previous Board case, Target Rock, 324 NLRB 373 (1997) suggested that employer statements advising replacements of their “at-will” status (e.g., “you may be terminated at any time with or without cause”) were inconsistent with an assertion of permanent replacement status. In Jones, the Board overruled that prior holding.
  • Finally, in BE&K Construction Co., 351 NLRB No. 29 (Sept. 29, 2007), the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act, regardless of the employer’s motive for bringing the suit. Following the United States Supreme Court’s unanimous rejection of the Board’s 1999 decision in BE&K Construction Co., 329 NLRB 717, on remand, the Board has held that the First Amendment right to petition protects employers who file reasonably based lawsuits against unions. Accordingly, even if a lawsuit is filed by an employer in order to retaliate against a union, and the case is ultimately dismissed, the actual filing and prosecution of the case will not constitute an unfair labor practice unless the suit is “objectively baseless,” “if ‘no reasonable litigant could realistically expect success on the merits.’

Another case certain to be re-assessed is Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007).   Another 3-2 decision, it held an employer did not violate Section 8(a)(1) of the NLRA by maintaining a policy prohibiting employees from using the employer’s e-mail system for any “non-job-related solicitations.”  Addressing the maintenance of the policy, the Board majority reiterated that under Board precedent, absent discrimination, employees have no statutory right to use an employer’s equipment for Section 7 purposes.  With respect to the alleged discriminatory application of the policy regarding discipline issued for specific e-mails, the majority held that “discrimination under the Act means drawing a distinction along Section 7 lines.”  This latter analysis marked a departure from prior Board holdings.

Finally, a series of decisions known as the "Kentucky River" cases came down in 2006, in which the NLRB clarified the definition of "supervisor" under the National Labor Relations Act.  This set of decisions caused significant consternation among labor unions and their friends in Congress who accused the Board of attempting to disenfranchise employees by exempting them from the Act as "supervisors."  In response to these decisions,  Rep. Robert Andrews (D-NJ) introduced H.R. 1644, the RESPECT Act, which would narrow the definition of "supervisor" in the NLRA and allow unionization of greater numbers of workers — many likely considered front-line supervisors by employers.  With 164 co-sponsors, the bill passed Committee by a 26-20 vote before stalling.  It is possible that we have not yet seen the re-introduction of the RESPECT Act in the 111th Congress, because the bill’s proponents believe the Obama Board will reverse the Kentucky River decisions through its own procedures.

Thursday’s hearings will likely advance significantly the process toward the nomination and confirmation of Messrs. Becker and Pearce and the return soon of the Board to a full complement of Members.  Employers must follow these developments closely and prepare for the resulting shifts in the regulatory landscape.