by Jackson Lewis

At the close of 2007, many areas of workplace law are being reexamined through judicial, legislative, and regulatory lenses. In the past year, the 110th Congress has dealt with a number of workplace initiatives, including passing an increase in the federal minimum wage, proposing to negate a series of pro-employer decisions under the Americans with Disabilities Act, and intensifying the debate on employer sanctions for hiring undocumented workers. At the National Labor Relations Board, a spate of recent decisions has revisited a number of significant issues, including:

• how soon employees can decertify a union after an employer recognizes it voluntarily,
• when an employer is justified in prosecuting a lawsuit against a union which employed arguably illegal means to organize employees, and
• who is an "employee" entitled to protection against discrimination for engaging in union activity under the NLRA.

More than being pro-employer or pro-union, many of these decisions can be viewed as giving individuals who are legitimately interested in employment a greater voice and choice in the terms and conditions under which they work. This trend towards acknowledging and addressing employees' legitimate workplace needs - apart from third-party representatives and outside advocates "can be seen in many facets of employment law. "Savvy employers take the long view and understand the opportunity this presents for listening to employees and engaging them with policies and programs that bridge the gap between what reasonably is required and expected from both sides in the employment relationship," says Philip Rosen, head of the Jackson Lewis labor law practice. "Taking advantage of the opportunity simply makes good sense for achieving business objectives and bottom line results."

In fiscal year 2007, the National Labor Relations Board issued 391 decisions, 287 of which involved charges of unfair labor practices by employers and unions. Among them were several long-awaited rulings on important issues of employee rights in the face of increasingly aggressive union organizing strategies.

Cases Concerning Union Decertification
Of particular note is Dana Corp., which was combined with a similar case, Metaldyne Corp., both of which involved employee decertification efforts following the employer voluntarily recognizing the union. The Board's 3-2 ruling, issued on September 29, 2007, strikes a compromise that provides "greater protection for employees' statutory right of free choice."

The ruling changed 40 years of existing Board doctrine by creating a window of opportunity for employees to file petitions for union decertification or for rival union representation. Under the new rule, once employees receive notice that their employer voluntarily has agreed to recognize a union, they have 45 days to challenge that recognition before a no-challenge period begins. If employees do not receive such notice, they may challenge the voluntary recognition and any resulting union contract immediately without interference.

In issuing the new rule, the Board repeatedly acknowledged the importance of "striking 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."

In deciding to give employees who did not have a secret ballot vote a 45-day period to decide whether to be represented by a union, the Board acted to "achieve a 'finer balance' of interests that better protects employees' free choice."

Individuals' NLRA Rights
In two other 3-2 Rulings, the Board considered the scope of individuals' NLRA rights. The first relates to who is an "employee" entitled to the law's protection against discrimination. The other concerns what the law requires to determine the appropriate amount of back pay in an unlawful discharge case. In both decisions, the Board examined the actions of the individuals in relation to their interest in employment, and put the burden on the Board's General Counsel, who prosecutes cases on its behalf, to prove, respectively, "an individual's genuine interest in seeking to go to work" and "that the discriminatee took reasonable steps to seek [those] jobs."

In Toering Electric Co., 351 NLRB No. 18, the Board ruled that an applicant for employment must be genuinely interested in establishing an employment relationship in order to be an "employee' protected against hiring discrimination because of union affiliation or activity. The Board further held that the General Counsel bears the ultimate burden of proving an individual's genuine interest in seeking to work for the employer.

Formerly, the Board presumed that any individual who submitted an employment application -- even a union "salt" -- was entitled to the NLRA's protection against discrimination in hiring. In Toering Electric, the Board rejected that presumption. Only applicants who meet the definition of statutory employees are entitled to protection against hiring discrimination. Such status requires the existence of "at least a rudimentary economic relationship, actual or anticipated, between employee and employer."

According to the Board, "submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity. Indeed, such conduct manifests a fundamental conflict of interests ab initio between the employer's interest in doing business and the applicant's interest in disrupting or eliminating this business."

Focusing on individual action and its consequences in another case, the Board has modified its approach to determine the appropriate amount of back pay to make whole an individual who has been discharged in violation of the NLRA. [St. George Warehouse, 351 NLRB No. 42.] First, the NLRB's General Counsel must prove the amount of pay the individual would have been entitled to receive but for the discharge. That amount is then reduced by the individual's earnings, if any, from the time of the discharge to the date the employer offered reinstatement.

Employer Lawsuits Against Unions
The Board also formed a new standard for employer lawsuits against unions. In formulating the new standard, the Board took into account another Supreme Court decision that found an ongoing "reasonably based" lawsuit cannot be enjoined as an unfair labor practice. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983). In BE&K Construction, the Board reasoned that the same protection must apply to a completed lawsuit that was reasonably based. According to the Board, reaching a different result for a completed, reasonably based lawsuit would have a "chilling effect" on the employer's constitutional right to petition the government for redress through the courts. Using its newly-developed standard, the Board found the BE&K lawsuit was reasonably based and the unfair labor practice complaint was dismissed.

This favorable ruling gives employers a powerful tool in a corporate campaign, which has little to do with the employees for whose affiliation the union is vying. Labor leaders report they are gaining more union members through card checks and neutrality agreements than through the Board processes of representation petitions and secret ballot elections. This type of campaigning often has the objective of persuading the employer to agree to neutrality or card check recognition, thereby circumventing the NLRA's secret ballot election process where employees have the opportunity directly to participate by voting on whether to have a union. "With the increasing sophistication and prevalence of corporate campaign-style organizing, BE&K Construction helps put employers in a better position to engage a more aggressive, toe-to- toe strategy by going on the offensive," observes Jackson Lewis attorney Philip Rosen.