Labor law historically has swayed with the political tides. It comes as no surprise that the Obama administration already plans to target decades-old provisions of the National Labor Relations Act. With the new administration appointing new board members to the National Labor Relations Board (NLRB), several significant rulings of the Bush-era board are in danger of being overruled and sway the law in the unions’ favor.
The following rulings may be targeted.
The right of employers to file lawsuits over labor matters. Specifically,
BE&K Construction Co., which removed NLRB obstacles to open a path for reasonably based lawsuits by employers against unions without the risk of unfair labor practice liability if the lawsuit, or a claim in it, failed.
The right of employees to vote out an undesired union. Specifically,
Dana Corp., in which the board said recognition arrangements between an employer and a union did not trump the rights of employees to a secret ballot election to determine whether a majority of the affected employees actually wanted the union’s representation.
The right of salts to claim they are legitimately seeking employment with a targeted employer. Specifically,
Toering Electric Co., in which the board ruled NLRB prosecutors in salting cases must prove a salt has a "genuine interest in employment" before backpay is awarded to remedy alleged discrimination.
The rights of alleged discrimination victims to sit back and watch employer liability accumulate. For example:
- St. George Warehouse, in which the board held the NLRB prosecutor must prove an unlawfully terminated employee took reasonable steps to look for work after being fired as a condition of recovering backpay.
- Grosvenor Resort, in which the board ruled discharged employees who engaged in picketing, but otherwise waited more than two weeks before looking for a new job, will be denied backpay for that period so as not to "reward idleness."
- Oil Capital Sheet Metal, in which the board ruled a salt could only recover backpay for lost employment if the NLRB prosecutor proves the salt would have worked for the employer for a specified period.
The rights of employers to control rogue supervisors who actively campaign for unions. Specifically:
- Oakwood Healthcare, in which the board refined its analysis of authority to assign work and to exercise independent judgment as criteria for supervisory status.
- Harborside Healthcare, in which the board confirmed a supervisor’s alignment with management made it inappropriate for the supervisor to solicit authorization cards from employees in an organizing campaign and, therefore, voided the union’s election victory.
The rights of employers to withdraw recognition from an undesired union. Specifically:
- Shaw’s Supermarkets, Inc., in which the board allowed an employer to withdraw recognition from a union after the third year of a labor agreement because a majority of employees expressed opposition to having the union.
- Wurtland Rehabilitation, in which the board allowed an employer to withdraw recognition from a union after a majority of employees signed a petition demanding an election to remove the union.
The right of an open shop employee to representation in pre-discipline investigations. Specifically,
IBM, in which the board declared open shop employees are not entitled to representation by a fellow employee in an investigatory interview that might lead to discipline. Arguments against the ruling focus on employees needing concerted protection against unscrupulous employers.
Additionally, states and local governments are expected to pursue local labor legislation that will encourage organizing activity and discourage or punish employer communication about unions with employees. The NLRB played a significant role in persuading the U.S. Supreme Court to strike down such a California law in
Chamber of Commerce v. Brown. Whether the NLRB in the new administration would oppose such legislation in the courts remains to be seen.
Open shop employers are advised to fine-tune their policies and practices consistent with current legal standards. Doing so will require regular dialogue with experienced labor counsel to stay up to speed with what may well be a fast-paced administration on labor issues.