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NLRB Issues Controversial Setbacks to Labor Unions

Pair of Rulings Change Decertification / Salting Fundamentals

In the last two weeks, the National Labor Relations Board (“NLRB”) issued two sharply divided and controversial opinions which scale back key pro-union doctrines. In each, the Board issued 3-2 decisions, likely to be revisited if there is a party change in the White House.

Decertification Doctrine Altered

In the first decision, Dana Corp., 351 NLRB No. 28 (September 29, 2007), the National Labor Relations Board threw out the irrebuttable presumption that labor unions enjoy majority support after employers voluntarily recognize them as the employees’ exclusive bargaining representative. Some employers grant voluntary recognition to avoid a fight with labor unions. Other employers grant voluntary recognition after examining employee signed authorization cards (aka “card check”), and unions have increasingly negotiated for this preferential treatment at the bargaining table as a means of avoiding secret ballot elections for employers with multiple facilities in different locations.

The NLRB imposed a new 45-day window during which employees may file a decertification election to oust the newly recognized labor union. In addition, rival labor unions may also file a petition during the same 45-day window. This change is a significant defeat for labor unions who have pressured employers to grant voluntary recognition. Previously, once voluntary recognition occurred, unions typically had a irrebuttable presumption of majority status for at least one year.

The new rule requires the employer and/or the union to promptly notify the NLRB, in writing, of any grant of voluntary recognition. The NLRB will then forward an official notice to be posted in conspicuous locations throughout the workplace for 45 days. Upon expiration of the 45-day window, provided no decertification or rival union petitions have been filed with the NLRB, the recognition bar will commence, precluding any challenge to a union’s majority status for a reasonable time so as to permit the collective bargaining process to proceed efficiently. If such a petition is filed with the NLRB, supported by 30 percent or more of the unit employees, a secret ballot election will determine the union’s majority support.

In language perhaps designed to address the so called “Employee Free Choice Act” that was proposed in Congress this year, the NLRB issued a strong statement in support of secret ballot elections. It held that voluntary recognition based on a card-check procedure is inherently less reliable than a NLRB-conducted secret ballot election. The majority noted that while a secret ballot “election presents a clear picture of employee voter preference at a single moment,” organizing campaigns based on card collection can take months, or sometimes years.

Not surprisingly, the AFL-CIO described the decision as “outrageous” and “shameful.”

NLRB Limits Salting Efforts by Labor Unions

In yet another damaging blow to union organizers, the NLRB issued new rules limiting the ability of labor unions to file charges (and get damages) for salting efforts. In Toering Electric Company, 351 NLRB No. 18 (September 29, 2007), the Board held that in order to find that an employer has engaged in a discriminatory refusal to hire, it must be proven that the applicant had a genuine interest in obtaining employment.

“Salting a job” is a tactic whereby a union supporter (in many cases a full time organizer or business agent on the union’s payroll) obtains employment with a non-union employer. The “salt” utilizes the position to spread the union’s message to the non-union employer’s workforce. The salt’s ultimate goal is to organize the employer, and failing that, to wreak havoc in the form of employee attrition, work slowdowns or strikes, legal challenges or other disruptive tactics.

The NLRB held that frequently “salts” pay little attention to the traditional application process, as they possess no interest in obtaining employment. Rather, the overt salt leaves an employer no choice but to make a negative hiring decision, which the union subsequently utilizes as the basis for an unfair labor practice charge – alleging discrimination based upon their union support. Some salts simply fax in resumes without actually appearing at the employer’s office.

The union utilizes the unfair labor practice charge as a sword to cut down any competitive advantage held by unsuspecting non-union employers who are forced to expend crippling amounts of time and resources defending the charge. Negative publicity, legal fees, and fines either tilt the playing field in favor of union employers or drive the non-union employer out of business.

The new rule provides that the Union must meet a burden to prove that the salt held a “genuine interest” in obtaining employment. Further, the use of abusive, shockbased tactics during the in-person application process is a clear indication that the applicant does not truly seek employment. It is presumed that this higher burden will result in fewer unfair labor practice charges against employers.

IMPACT: Both rulings are likely to be used by labor unions to support a need for the recently rejected Employee Free Choice Act, which attempts to circumvent secret ballot elections by the National Labor Relations Board.