Posted on December 17th, 2007 by Tim Eavenson | No Comments »
Filed under: Labor Law, Politics | 
[Ed. note: I really wanted to figure out how to put the phrase "churning urn of burning funk" in the title somewhere, but god help me, I'm just too tired.]
They’re protesting in D.C. Using catchy nicknames. American Rights at Work has started a blog. The ABA is having a conference, for chrissakes. Clearly, something is going on over at the NLRB.
It has been dubbed the “September Steamroll”: 61 decisions in the course of a few weeks that, according to the labor folks, are a big high-five to anti-union emoployers and a different gesture – using a few less fingers – to the unions trying to organize them.
The unions say that the prolific actions of the National Labor Relations Board this fall, including some big ones we missed reporting on around here, are a last-ditch effort by a Bush-appointed Board to “do as much damage as possble”.
A summary of the big decisions and some coverage of the debate over their importance appears after the jump.
On November 15 union supporters marched through D.C. in protest of the “steamroll”, carrying super clever signs that said “NLRB: Close it For Renovations” (whoever’s writing for these guys should help out the WGA). In fairness, they also had signs that said something about the Employee Free Choice Act – boo-ring! Pick one protest and stick to it, huh?
The mass of decisions includes cases like Toering Electric Co. (blog post here), which further eroded the already tenuous protection afforded to union salts, and a doozy called Dana Corp. that overhauled (some would say eliminated) the ability of a union to be voted in by card check.
The WaPo article on the protests quotes former board members as saying that this is just a busy board trying to get in cases before the end of the year, and of course they’re going to side with business, because the majority is republican. But there’s another quote in the piece that makes this impartial observer think twice. From Chairman Battista’s prepared statement:
If these groups truly believe that our recent decisions are not consistent with the National Labor Relations Act, they are free to challenge those decisions in court — either directly in those cases in which they are a party, or they can assist in such a challenge in those cases where they are not a party,” Battista said in the statement. “I am confident that our decisions will be upheld on review.
Confident? Yeah, I bet he is.
The unions are focused too much on the short term. The Board isn’t racing because they’ve only got until 2008. If the Board is truly pro-business (as has been recently alleged) it’s had this gun cocked a long time. All that’s happened now is that John Roberts showed up and pulled the trigger.
If you were the NLRB, and you’d been wishing you could favor business over unions, and then Roberts shows up and starts throwing out $80 million cigarrette verdicts and giving pension plans automatic subrogation rights on participant personal injury judgments, wouldn’t you get a little more ballsy? The way I see it, Battista & Co. are throwing down a gauntlet – good or bad – waiting for someone to roll this heavy machinery across town and see what happens.
But, like most steamrollers, this one’s bound to move pretty slow (pertinent holiday exceptions noted). And in the meantime, expect these decisions to make their way up federal circuits that will start to look more and more disjointed, between conflicting rulings and the inevitable change of personnel at the Board next fall.
Not a bad time to be entering the L&E world, huh? Speaking of which, back to finals. See everyone soon.
Posted on October 16th, 2007 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
The NLRB has limited the National Labor Relations Act’s protections to only those job applicants who really want jobs they apply for. This will finally cut out all those independently wealthy jerks who apply for jobs and then turn them down just for laughs.
In Toering Electric Co., 351 NLRB No. 18, the Board said that only applicants with a “genuine interest” in developing an employment relationship with an employer will be covered under the Act. The General Counsel will have the ultimate burden to prove the applicant intended to develop the relationship, and the Board said that he could use receipts from restaurants and movie theaters where the applicant took the employer on dates and witness testimony of hand holding and make-out sessions at clubs as evidence.
Yeah, we made that last part up.
This is really another assault on the union strategy of “salting” that the Board seems oddly obsessed with lately.
As we previously reported, The Board limited salting protection earlier this year, holding that Salts would have to prove they planned to stay after the campaign if they wanted back pay for being let go. In Toering Electric, the Board (though seriously divided) raises the bar for bringing a claim at all, holding that Section 2(3) requires at least a “rudimentary economic relationship” that is absent in true salting cases.
The dissent went to town on that, saying nothing in the Act says anything about a person’s motives for applying – that you could be our hypothetical billionaire above and the NLRA should afford you the same protection as anyone else.
The big problem we see here is that the Supreme Court unanimously held that salts were protected under Section 2(3). If this trend in the Board continues – we see a trip to the Big House coming soon – and with the Supremes walking with their new gangstar lean, the Board may find the support they’re looking for.
Let us know what you think in the comments.
Posted on July 19th, 2007 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
The NLRB has changed its rules to disfavor “salting” campaigns. Shocker, we know.
But to do it without being asked, in the headwind of a still-young Supreme Court decision protecting salts under the NLRA is pretty ballsy, you have to admit.
Salts, of course, are the much-maligned folks that seek employment at non-union shops for the express purposes of unionizing the company’s workforce. They have the protection of the NLRA, according to the Supreme Court (well, the old one at least), but now the Board has changed the burden of proof in cases where companies refused or fired a salt. From now on (if that phrase is ever applicable to the NLRB), if a salt is going to get back pay for a company’s refusal to give him a job, his union will have to prove that he was planning to stay after he was done, ahem, “seasoning”.
The salting process is typically thought of like this: the union assigns a salt to a particular company. The salt then applies to the company, who either hires him or turns him down. If the salt gets hired, he attempts to unionize the company’s workforce and then moves on to another company as assigned by the union. If the employer refuses to hire a salt, or fires him when they find out why he’s really there, the salt files a refusal-to-hire or unlawful discharge claim with the NLRB, bringing the company’s non-union stance into the fore.
It is deception at its greatest, as far as most non-union companies are concerned. But to the unions, salting may represent their only real chance to gain access to a closed shop.
So, here’s the situation – When an employee is fired, or wrongfully refused a job, he or she is entitled to backpay for the period starting at the employer’s unlawful act (the firing) and going until the act is remedied, usually by an offer of reinstatement. The presumption was that, if hired or retained, the employee would have continued working at the shop for an indefinite period of time. The burden is squarely on the employer’s shoulders to prove why that isn’t the case.
In ’95, the Supreme Court held that salts are protected employees under the NLRA. That means that refusing to hire one of them, or firing one of them, should carry the same consequences as any other employee, right? Here’s where we pick up our most recent Board decision, already in progress:
The Board, in Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, decided that – for salts – the backpay presumption just doesn’t work. According to the Board, “rote application of the presumption has resulted in backpay awards that bear no rational relationship to the period of time a salt would have remained employed with a targeted nonunion employer.”
The majority (it’s a 3-2 decision) admits that there are times where a union could leave a salt in his position after the salting campaign, but claims that it should be the union’s job to prove it – not the employer’s to prove the salt would leave.
What’s the problem with all of this? Well, according to the dissent, the biggest problem is that nobody asked the Board to reconsider the issue. So, in the face of a Supreme Court decision, and without prompting from any of the parties, the Board has turned 180 degrees in its treatments of salting campaigns. It’s telling that, in referencing the Supreme Court’s holding that salts are people too (to paraphrase a little), the majority makes it clear that SCOTUS displayed “considerable deference accorded to the Board’s interpretation of the Act”. I was trained in my labor law class to take this as a sign to the Circuits that they should reconsider the issue. Is the Board trying to fire a case up to the Supremes now that their ranks have shifted?
So, now here’s the question – is the change in policy justified? Given the nature of salting, isn’t it better to presume the employee is temporary? It is a pretty big burden on the employer to prove a negative, but they still have to do it in wrongful discharge cases of non-salt employees, so is that really a good justification for the change?
Oil Capitol – via Law Memo
They’re protesting in D.C. Using catchy nicknames. American Rights at Work has started a blog. The ABA is having a conference, for chrissakes. Clearly, something is going on over at the NLRB.
