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NLRB policy shifts
October 20, 2007 by Ross Runkel at LawMemo
In a three day flurry, the NLRB issued several decisions announcing changes in the Board's policies and legal interpretations. Most of them were pro-employer, with the Board's vote divided along party lines.
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Recognizing union after merger not dependent on due process.
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Employee misconduct discovered through employer's unlawful conduct.
New rules for voluntary recognition bar.
Dana
Corporation, 351 NLRB No. 28 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/28.htm
The NLRB
(3-2) has modified the recognition bar rules for card-based recognitions,
whether or not the voluntary recognition is pursuant to a neutrality or
card-check agreement. In a nutshell: "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."
GC must prove salts have "genuine interest" in employment .
Toering
Electric Company, 351 NLRB No. 18 (September 29, 2007)
http://www.lawmemo.com/nlrb/vol/351/18.htm
The
NLRB (3-2) has modified the rules for the application of Section 8(a)(1) to
employer refusals to hire or to consider hiring an applicant because of union
considerations, requiring the General Counsel to prove that an applicant was
"genuinely interested in seeking to establish an employment relationship
with the employer."
Reasonably based lawsuits do not violate the Act.
BE&K
Construction Co., 351 NLRB No. 29 (September 29,
2007)
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.htm
The Board, in a 3-2 decision, held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act, regardless of the motive for bringing the suit.
At-will replacements permanently replace strikers.
Jones
Plastic & Engineering Co., 351 NLRB No. 11 (September 27,
2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35111.htm
The Board announced that at-will employment status does not detract from an employer’s otherwise valid showing that it has permanently replaced striking employees. The Board overruled Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.
Recognizing union after merger not dependent on due process.
Raymond
F. Kravis Center for the Performing Arts, 351 NLRB No. 19 (September 28,
2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35119.htm
In a 3-0 decision, the Board modified its standard for determining under what circumstances a union merger or affiliation may relieve an employer of its obligation to recognize and bargain with an incumbent union. Reversing precedent, the Board determined that an employer could not withdraw recognition after a merger or affiliation merely because the merger or affiliation was not conducted with adequate “due process.” Rather, the Board held that the employer’s obligation to recognize the union continues unless the merger or affiliation resulted in changes so significant as to alter the identity of the bargaining representative.
Revised election ballot.
Ryder
Memorial Hospita, 351 NLRB No. 26 (September 28, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35126.htm
The Board has revised its official election ballot to explicitly include language that asserts the Board’s neutrality in the election process and disclaims the Board’s participation in the alteration of any sample ballots. The Board said that this language will preclude any reasonable impression by employees that the Board endorses a particular choice in any election and, accordingly, it eliminates the need for the Board to engage in a case-by-case evaluation of allegedly objectionable altered sample ballots.
Employee misconduct discovered through employer's unlawful conduct.
Anheuser-Busch,
Inc., 351 NLRB No. 40 (September 29, 2007).
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35140.htm
The Board, by a 3-2 vote, reaffirmed its 2004 holding that the Act prohibits the Board from granting a make-whole remedy to employees disciplined or discharged for misconduct discovered as a result of unlawful conduct by their employer. Without bargaining with the union, Anheuser-Busch installed hidden surveillance video cameras. Through use of the cameras, Anheuser-Busch learned that certain employees were engaged in misconduct, and it disciplined or discharged 16 of them.
Backpay: GC has burden as to employee seeking work.
St.
George Warehouse, 351 NLRB No. 42 (September 30, 2007)..
http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35142.htm
The Board, by a 3-2 vote, modified its procedures in backpay cases. Under the new rule, the General Counsel will have the burden of producing evidence concerning employees’ efforts to find interim employment after an unlawful discharge. The employer retains the ultimate burden of proof, but once the employer shows that comparable jobs were available the General Counsel must produce the employee to testify or offer other competent evidence of the employee’s interim job search.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
