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November/December 2007

In this issue:

• Dues Checkoff An Economic Weapon
  
• Go Ahead And Sue
  
• “At Will” Employees Can Be Permanent Replacements
  
• Gotcha – Even If We Didn’t Bargain
  
• Cutting Back on "Salt" Intake
  
• Neutrality And Card Check Agreements Subject To Employee Vote
• Don't Get Too Comfy…These Decisions May Be Short-Lived
  

NLRB’S “September Steamroll” “Stacks the Deck” in Favor of Business, Unions Claim

While the business community welcomed many of the 61 decisions issued by the National Labor Relations Board in September, labor organizations were clearly unhappy. Hundreds of union members and leaders along with civil rights and religious leaders recently marched from AFL-CIO headquarters to the NLRB headquarters several blocks away in Washington, D.C., to protest those decisions. According to AFL-CIO and Change to Win spokespersons, those decisions stack the deck in favor of big business over working men and women.  Similar protests took place at 20 other locations around the country.

Why all the fuss?  Here is a summary of the most noteworthy decisions:

Dues Checkoff an Economic Weapon. Where the dues-checkoff clause in the contract contained express language limiting the employer’s checkoff obligation to the contract term, the employer did not violate Section 8(a)(5) of the Act when it unilaterally stopped dues checkoff at contract expiration. According to the Board in Hacienda Hotel, Inc., dues checkoff is one of the mandatory subjects for bargaining – like no-strike and arbitration clauses – which does not survive contract expiration. According to the administrative law judge, cutting off dues checkoff is a form of economic weaponry whereby the employer cuts off this automatic flow of funds in order to persuade the union to agree to outstanding contract issues.

Go Ahead and Sue. In BE&K Construction Co. the Board ruled that the filing and maintenance of a reasonably based lawsuit does not violate Section 8(a)(1) of the Act regardless of the motive for bringing it (such as to impose litigation costs on the union). The Board had previously found a Section 8(a)(1) violation if the lawsuit resulted in a judgment against the employer and the lawsuit was filed with retaliatory intent. Now, the only issue before the Board will be whether the employer had a reasonable basis for filing the lawsuit.

“At-Will” Employees Can Be Permanent Replacements. During an economic strike the employer hired replacements for 53 employees who had walked off their jobs. The replacements completed job applications which stated that they could “be terminated at any time without any previous notice” as well as a form stating their employment “may be terminated  by [the employer] at any time, with or without cause.” Overruling its earlier decision in Target Rock that at-will employment is inconsistent with an otherwise valid showing of permanent replacement status, in Jones Plastic & Engineering Company, the Board held that since the employer had established a mutual understanding with its replacement employees that they were permanent employees and its at-will disclaimer did not distract from that showing, the replacements were, indeed, “permanent” replacements who could not be displaced by former strikers.

Gotcha – Even if We Didn’t Bargain.  In Anheuser-Busch, Inc., the employer installed hidden surveillance cameras after it uncovered evidence that employees were engaging in misconduct, including use of illegal drugs, in informal break areas on the roof of a building. The employer did not provide the union with notice and an opportunity to bargain over the installation of the cameras. Over a period of a month and a half, 16 employees engaged in misconduct. Five were discharged for violating a plant rule by using illegal drugs and 11 others were suspended for other rule violations. Although the employer had violated Section 8(a)(5) by failing to bargain over the cameras’ installation, the Board overruled its prior decisions and held that Section 10(c) of the Act does not limit its authority to decline to order the employer to rescind its disciplinary actions for the employees’ clear violations of pre-existing rules of conduct.

Cutting Back on “Salt” Intake.  Unions frequently use “salting” in connection with their efforts to organize employees, particularly in the construction industry. Paid professional union organizers will apply for employment with the hope of being rejected because of their union affiliation, a violation of Section 8(a)(3). Previously, employers had the burden of proving not only the salt’s lack of interest in employment, but also that the lack of interest was the reason he was not hired. In Toering Electric Company, the Board changed that burden. Hereafter, if the employer puts forth evidence reasonably calling into question an applicant’s genuine interest in employment, the NLRB General Counsel must prove the applicant’s genuine interest by a preponderance of evidence in order to show the applicant is an “employee” within the meaning of the Act.

Neutrality and Card Check Agreements Subject to Employee Vote.  The most controversial decision in its “September Steamroll” modified the Board’s recognition-bar doctrine in card-based recognition situations. Previously, where an employer had voluntarily recognized a union in good faith and based on a demonstrated majority status, an election petition filed by an employee or rival union was immediately barred for a reasonable period of time. In Dana Corporation, the Board “changed the rules” significantly in order to strike the proper balance between protecting employee freedom of choice on the one hand and promoting stability of bargaining relationships on the other. The Board modified its recognition-bar doctrine, holding that no election-bar will be imposed after a card-based recognition unless (1) the unit employees receive notice of the employer’s recognition and of their right to file a decertification petition within 45 days of the notice and (2) 45 days pass from the date of the notice without the filing of a valid petition. If the petition is supported by 30 percent or more of the unit employees, it will be processed. The union or the employer must promptly notify the NLRB regional office in writing of the voluntary recognition and the regional office must then send the employer an official notice to post in the workplace during the 45-day period.

But Don’t Get Too Comfy…These Decisions May Be Short-Lived.  The labor protests of the Board’s “September Steamroll” decisions come at a time when there could soon be a number of vacancies at the NLRB. The terms of two of the three Board members providing the majority opinions in each of the above cases will expire shortly – Batista’s term expires on December 16, and Kirsanow’s recess appointment expires when the Senate adjourns its 2007 session. Member Walsh is also serving a recess appointment due to expire when the Senate adjourns. To prevent President Bush from making other recess appointments after Congress adjourns, Democrats are talking up the possibility of staying in session to prevent any recess appointments at that time. Organized labor has vowed to make it as hard as possible for Bush to nominate new Board members who are “outside the mainstream” (in other words – not pro-labor).  Stay tuned!