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NLRB Law Memo 10/03/2007
by Ross Runkel at LawMemo
NLRB Law Memo 10/03/2007
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NLRB - New rules for voluntary recognition bar (3-2).
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."
The Board
majority said:
"Metaldyne
Corporation and Dana Corporation (the Employers) independently entered into
separate neutrality and card-check agreements with the International Union,
United Automobile, Aerospace, and Agricultural Implement Workers of America,
AFL–CIO. Subsequently, the
Employers recognized the Union upon a showing of majority support of the
respective unit employees. Shortly
after the Employers' recognition of the Union (22 days for the Metaldyne
unit and 34 days for the Dana unit), employees in each unit filed a petition
seeking a decertification election. The
Metaldyne petitions were supported by over 50 percent of the unit employees,
while the Dana petition was supported by over 35 percent of the unit
employees. The Regional Director for Region 6 and the Regional Director
for Region 8 dismissed the Metaldyne and Dana petitions, respectively, based
on an application of the Board's recognition-bar doctrine. According to this doctrine, an employer's voluntary
recognition of a union, in good faith and based on a demonstrated majority
status, immediately bars an election petition filed by an employee or a
rival union for a reasonable period of time.
A collective-bargaining agreement executed during this insulated
period generally bars Board elections for up to 3 years of the new
contract's term.
"The
Petitioners filed timely requests for review of the Regional Directors'
dismissals. Through their petitions, the employees sought a change in Board
law in order to permit them to express their views, either for or against
unionization, in a decertification election.
The Board granted review to re-examine its recognition-bar doctrine.
"Our
inquiry here requires us to strike the proper balance between two important
but often competing interests under the National Labor Relations Act: 'protecting employee freedom of choice on the one hand, and
promoting stability of bargaining relationships on the other.'
It is a well-recognized judicial doctrine that 'the Board should be
left free to utilize its administrative expertise in striking the proper
balance.'] In striking that
balance here, we find that the immediate post-recognition imposition of an
election bar does not give sufficient weight to the protection of the
statutory rights of affected employees to exercise their choice on
collective-bargaining representation through the preferred method of a
Board-conducted election.
"In
order to achieve a 'finer balance' of interests that better protects
employees' free choice, we herein modify the Board's recognition-bar
doctrine and hold that 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.
The requisite showing of interest in support of a petition may
include employee signatures obtained before as well as after the
recognition. These principles
will govern regardless of whether a card-check and/or neutrality agreement
preceded the union's recognition.
"Modifications
of the recognition bar cannot be fully effective without also addressing the
election-bar status of contracts executed within the 45-day notice period,
or contracts executed without employees having been given the newly-required
notice of voluntary recognition. Consequently,
we make parallel modifications to current contract-bar rules as well such
that a collective-bargaining agreement executed on or after the date of
voluntary recognition will not bar a decertification or rival union petition
unless notice of recognition has been given and 45 days have passed without
a valid petition being filed.
"The
Board's usual practice is to apply a change in law retroactively, including
in the case in which the change is announced.
However, we find that an exception is warranted here to avoid
inequitable disruption of bargaining relationships established on the basis
of the former voluntary recognition-bar doctrine.
We therefore apply the recognition-bar modifications adopted herein
prospectively only. Accordingly,
we affirm the Regional Directors' administrative dismissals of the petitions
before us under extant law."
NLRB - GC must prove salts have "genuine interest" in employment relationship (3-2).
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."
The
majority said:
"Section 8(a)(3) of the Act makes it an unfair labor practice for an employer 'by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .' The protection of this provision has been extended to applicants for employment. Consequently, an employer can violate Section 8(a)(3) by refusing to hire or to consider hiring an applicant because of union considerations.
"In many instances, there is no question that an individual who applies for work with an employer does so pursuant to a good-faith interest in accepting a job if offered on acceptable terms. However, in some cases, it is apparent that alleged applicants have no such interest. In this case, we address such behavior under the standard adopted by the Board in FES for determining whether there has been a discriminatory refusal to hire or consider for hire. First, we define an applicant entitled to statutory protection against hiring discrimination as someone genuinely interested in seeking to establish an employment relationship with the employer. Second, we impose on the General Counsel the burden of proving under FES that an alleged discriminatee meets this definition.
"Requiring that the General
Counsel prove an applicant's genuine interest in securing employment is
essential to the effective administration of the Act. Our decision today
will insure that only those for whom Congress intended statutory protection
as actual or potential employees will receive it. As discussed below, the
Board's experience has shown that in some hiring discrimination cases,
particularly those involving 'salting' campaigns, unions submitted batched
applications on behalf of individuals who were neither aware of the
applications nor interested in employment opportunities with the employer.
In other cases, individuals submitted applications but were not interested
in obtaining employment with the employer. Their applications, sometimes
accompanied by conduct plainly inconsistent with an intent to seek
employment, were submitted solely to create a basis for unfair labor
practice charges and thereby to inflict substantial litigation costs on the
targeted employer. The absence of a clear and consistently applied
requirement that the General Counsel must prove an applicant's genuine
interest in securing employment has opened the door to these abusive
tactics. By imposing this requirement under FES, we shall prevent those who
are not in any genuine sense real applicants for employment from being
treated by the Board as if they were."
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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