- NATIONAL LABOR RELATIONS ACT--EMPLOYERS MAY NOT INITIATE DECERTIFICATION: The Sixth Circuit Court of Appeals has held that an employer who assists employees in circulating a decertification petition violates the National Labor Relations Act ("NLRA"). In NLRB v. V&S ProGlav, __ F.3d ___ (6th Cir. 1999), a company "lead man," who reported directly to the employer's president, found an envelope containing an NLRA decertification petition in his truck with blank spaces for employees to sign. The lead man reported the petition to the president who denied placing the petition in the truck. The president told the lead man that he could not "talk about the petition" but asked if the lead man could circulate the petition and get some employees to sign it. He was later instructed by the president to get even more signatures. After a June, 1995, strike and after the collective bargaining agreement between the union and the employer expired, the president again asked the lead man and another employee to circulate a second petition to decertify the union. Eventually, the two men, at the president's urging, convinced more than 50 percent of the employees to sign the petition after which the employer contacted the union advising it that the employees no longer wanted representation and the employer was withdrawing recognition of the union, asserting that it had a "good-faith" doubt about the union's continued majority status. The Sixth Circuit affirmed the NLRB's finding that the employer's actions violated the NLRA by drafting and circulating the decertification petition, and instigating and soliciting employees to sign it. This activity, coupled with promising benefits and interrogating employees about their cooperation with the Board's investigation, all resulted in both the Board's and Sixth Circuit's conclusion that the employer violated the NLRA.
- COMMENT: Employers may not have any role in circulating a decertification petition or promising benefits, threatening reprisals or questioning employees relative to an NLRB investigation. Such conduct will certainly result in an unfair labor practice charge and will make any attempt to withdraw recognition from the union ineffectual.
- NATIONAL LABOR RELATIONS ACT--BARGAINING OVER WAGES OR BENEFITS OF STRIKE REPLACEMENTS NOT REQUIRED: In a 3-2 ruling, the National Labor Relations Board adhered to its long-standing rule that a struck employer does not have to bargain with a union before setting terms and conditions of employment for strike replacements which are different from those in the regular bargaining unit. The Board majority concluded that an employer facing a strike does not have the luxury of postponing the hiring of replacements pending bargaining, and that requiring bargaining over this issue would interfere with the parties' primary objective of reaching a collective bargaining agreement. Detroit Newspaper Agency, 326 N.L.R.B. No. 64, 161 L.R.R.M. 1033 (1999).
- NATIONAL LABOR RELATIONS ACT--PERMANENTLY DISABLED EMPLOYEE STILL ELIGIBLE TO VOTE IN AN NLRB ELECTION: An employee on long-term disability, whose physician certified that he was permanently and totally disabled and would never be able to return to work, is still eligible to vote in a representation election, the NLRB concluded in a 2-1 ruling. An employee on sick or disability leave, the Board majority concluded, is presumed to be eligible to vote absent an affirmative showing that the employee has resigned or been discharged. Dissenting Board member Hurtgen urged the adoption of the standard that an employee should not be eligible to vote if he has no reasonable expectancy to return to the bargaining unit. Supervalu Inc., 328 N.L.R.B. No. 9, 161 L.R.R.M. 1017 (1999).
- NATIONAL LABOR RELATIONS ACT--ASSET PURCHASER OF BANKRUPT PAPER MILL IS SUCCESSOR DESPITE 16-MONTH SHUTDOWN: The National Labor Relations Board concluded that the asset purchaser of a bankrupt paper mill, which had shut down for 16 months, still had to bargain with the union representing the bankrupt company's employees. Although the new company had hired only 50 at the former company's 500 employees, and was a substantially smaller operation, the Board majority concluded that the asset purchaser was still a successor under federal labor law. Tree-Free Fiber Co., 328, N.L.R.B. No. 51, 161 L.R.R.M. 1081 (1999).
Labor Relations Alert
This article was edited and reviewed by FindLaw Attorney Writers | Last reviewed March 26, 2008
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