Employment Law Alert: The Logjam Breaks: NLRB Issues Critical Decisions
Labor law practitioners have been waiting—in some cases, for years—while the NLRB wrestled with a number of critical issues. With three members of the Board facing the expiration of their terms, expectations mounted for major action.
The Board did not disappoint. Earlier this week, the Board issued an unprecedented flood of important decisions:
- In perhaps the most anticipated case, the Board decided in Dana Corp. to modify its "recognition bar" doctrine, and permit dissatisfied employees to file a decertification petition within 45 days of an employer’s recognition of a union arising from a card check. The Board had previously applied the same one-year recognition bar as it still applies to certifications following an election. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35128.pdf.
- Toering Electric Co. dealt with union "salts," union organizers who apply for employment, really intending only to unionize the company’s employees. Recognizing that sometimes the salt’s "application" was solely intended to create unfair labor practice charges and other costs, the Board will now require that the applicant have a "genuine interest in employment" with the employer. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35118.pdf.
- In R.F. Kravis Center, the Board addressed union mergers or affiliations. The Board indicated that it would no longer examine whether the union’s merger or affiliation decision possessed even rudimentary due process protections for the bargaining unit members. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35119.pdf.
- BE & K came before the Board on remand from the U.S. Supreme Court. The Board concluded that the filing of a reasonably based lawsuit against a union could not be barred by the National Labor Relations Act, even if done for an expressly retaliatory motive. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35129.pdf.
- In Wal-Mart, the Board concluded that an employer violated the law when it terminated its nonunion employee for asking for co-worker representation under Epilepsy Foundation, even though Epilepsy Foundation was later overruled in IBM. The Board departed from its normal rule of applying decisions retroactively. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35117.pdf.
- In Jones Plastic & Engineering Co., the Board overruled earlier case law, and concluded that the employer may retain permanent replacements in preference to returning strikers, even though the replacements were expressly hired as at-will employees. The case is available at http://www.nlrb.gov/shared_files/Board%20Decisions/351/v35111.pdf.
The Board also issued a number of other important decisions within the last week, addressing issues of what a collective bargaining agreement must say to amount to a waiver of the union’s right to bargain over changes in terms or conditions of employment, the wording of the Board’s standard election ballot, and the duties needed for a health care worker to be considered an exempt supervisor.
If you would like to discuss these developments, or any other traditional labor law issue, please contact:
Tim O’Connell at 206-386-7562 or firstname.lastname@example.org
Jerome Rubin at 206-386-7589 or email@example.com
Jim Shore at 206-386-7578 or firstname.lastname@example.org
Victor Kisch at 503-294-9648 or email@example.com
Dennis Westlind at 503-294-9221 or firstname.lastname@example.org
Jim Dale at 208-387-4282 or email@example.com
Salt Lake City
Matt Durham at 801-578-6984 or firstname.lastname@example.org
Or, contact any of your Stoel Rives labor and employment attorneys.