National labor relations board:

Pro-Employer Decisions of 2007 (Year in Review)

2007 resulted in a favorable year for employers in terms of decisions made by the National Labor Relations Board ("NLRB" or the "Board"). As you will read from the brief re-cap, employers will benefit from certain changes in long-standing Board precedent. Hopefully this trend of favorable decisions will continue beyond the Bush administration --- but many commentators believe that the 2008 election may prove otherwise. For the time being, these recent NLRB decisions are positive news for employers located throughout the United States.

Employees do not have a statutory right to use employer's e-mail system for union communications! At last, the Board has clarified its position on e-mail policies and how they interact with employees' federally protected rights under the National Labor Relations Act (NLRA). The Board, in The Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70, issued on December 16, 2007, held that employers that maintain a policy prohibiting employees from using the employer's e-mail system for any "non-job-related solicitations" do not violate the NLRA. Until recently, employers were faced with potential challenges by a union for simply maintaining an e-mail policy banning personal use of e-mail because it could potentially restrict an employee's right to communicate with the union or other employees about the union. In The Register-Guard, the Board essentially declared e-mail systems property of employers and thus employers have the right to restrict non-business use of such property.

Higher burden of proof in hiring discrimination based on union affiliation; i.e., "salting" has become more difficult for unions. Unions have long utilized salting techniques in which a union employee or member seeks employment for purposes of organizing or proving union discrimination to create a basis for unfair labor practice charges, and thereby to inflict substantial litigation costs on the targeted employer. The law on salting was favorable to unions until this year when the Board ruled in Toering Electric, 351 NLRB No. 18 (2007) that the NLRB now has the ultimate burden of proving that applicants have a "genuine interest" in seeking to establish an employment relationship with the employer. Without a showing of "genuine interest" in actual employment, the union "salt" will have no legitimate legal recourse.

An employer's voluntary recognition of a union is no longer a bar to decertification or representation petitions. Recently the Board, in Dana Corp., 351 NLRB No. 28 (2007), departed from a long-standing rule that voluntary recognition by an employer of a union based on the union's majority status, barred a decertification petition filed by employees or a rival union's petition for a reasonable period of time. Under the Board's new policy pursuant to Dana Corp., an employee or rival union may file a petition during a 45-day period following notice that a union has been voluntarily recognized. The petition will be processed, like other petitions, if it is supported by 30 percent of the bargaining unit. The net result is that now, more than ever, greater freedom of choice is recognized and protected--notably the employer may have greater options in thwarting the organizing efforts of certain unions.

Employees discharged for misconduct are not eligible for backpay and reinstatement even if employer learns of misconduct through the employer's own unlawful conduct. In Anheuser-Busch, Inc., 351 NLRB No. 40 (2007), the Board held Section 10 (c) of the NLRA precludes the NLRB from awarding a make-whole remedy to an employee terminated "for cause" even if the employer learns of employee misconduct through unlawfully installing hidden surveillance cameras. In Anheuser-Busch, the employer installed hidden cameras without giving notice to and bargaining with the union. The NLRB found the installation of the cameras was a unilateral change; however, the Board held that despite this, employees terminated as a result of the video footage misconduct were not entitled to backpay and reinstatement.

Retaliatory lawsuits reasonably based in law. In BE & K Construction Company, 351 NLRB No. 20 (2007), the Board held that filing and maintaining a reasonably based lawsuit does not violate the NLRA regardless of whether the lawsuit is ongoing or is completed, and regardless of the motive for initiating the lawsuit. Previously, Board precedent held against employers for filing lawsuits against a union when the employer eventually lost and upon a showing that the employer filed the suit with a retaliatory intent (i.e., for the purpose of imposing litigation costs upon the union). In BE & K, the employer filed a lawsuit against the union on various grounds based on the union's interference with completion of a construction project. The Board held the lawsuit was reasonably based in law and thus it did not chill a union's organizational activity in violation of the NLRA, despite a potential retaliatory purpose.

At-will employment does not detract from an employer's clear commitment to hire replacement employees during a strike. Federal labor law has long established an employer's right to hire employees to replace economic strikers and to retain them after the strike if the employer can prove a mutual understanding with the replacement employees that they will not be discharged to make room for returning strikers. Mackay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938), and Consolidated Delivery & Logistics, 337 NLRB 524, 526 (2002), efd. 63 Fed. Appx. 520 (D.C. Cir. 2003). The Board recently decided, in Jones Plastic & Engineering Company, that when an employer hires employees (permanent replacements) to replace those out on strike, at-will employment status will not detract from the employer's intention to permanently replace striking employees. At-will employment status is not evidence that striker replacements are not permanent replacements.

Dues check-off not a mandatory subject of bargaining with or without limiting contractual language. Recently the Board, in Hacienda Hotel, 351 NLRB No. 32 (2007), clarified its position on contractual language specifying that dues check-off would only remain in effect for the duration of the collective bargaining agreement. Such limiting language cuts off the employer's obligation to continue dues check-off (i.e., cutting off a source of funds to the union) despite subsequent events, such as the parties' continued bargaining. Suffice to say, this new clear precedent allows an employer the ability to use a sort of "economic weaponry" against the union.

For any questions, comment or discussion concerning these decisions, please contact Attorney Christina Lopez-Nutzman at (312) 461-0500, or at chlopez@chgo.w-p.com. Attorney Lopez is a former NLRB investigator and staff attorney in the NLRB's Chicago Office.