Recent NLRB Rulings Settle Long-Standing Litigation

Target Audience: National Labor Relations Board (NLRB) Rulings Interest, Construction Industry Professionals, Contractors, Construction Business Owners, Construction Accountant Interest, Construction Management, Union Organizers, Union and Non-Union Workers, Subcontractors

Five recent National Labor Relations Board (NLRB) rulings settle long-standing litigation. The decisions came about by close margins — many were decided by 3-2 votes. And, for the most part, they favor open-shop contractors.

If you are dealing with similar circumstances, considering these rulings may be helpful, but remember that each set of facts can be subject to different interpretations. Here are summaries of the five rulings in question:

1. Oil Capitol Sheet Metal 349 NLRB No. 118 (May 2007).

Contractors who discriminate by not hiring union organizers, or salts, may be required to hire the applicants. They won’t, however, be automatically ordered to provide full back pay from the application date as restitution.

 

In the past, the NLRB has presumed that union organizers would have worked indefinitely if they’d been hired and, therefore, awarded back pay for the entire period between the discriminatory-refusal-to-hire date and the subsequent NLRB-ordered job offer.

 

Now the NLRB general counsel must present evidence showing that salts would have worked for the full time between the refusal to hire and the job offer. The evidence may include the union’s salting policies and practices, the union’s specific plans for the contractor, or agreements between the union and salts as to the expected length of their assignments.

2. Glens FallsBuilding and Construction Trades Council, 350 NLRB No. 42 (July 2007).

Project owners can’t impose union-only project labor agreements on subcontractors unless the agreements are a result of collective bargaining or are intended to avoid job-site conflicts between union and nonunion workers.

 

In light of this ruling, project owners may face challenges if they enter into union-only project labor agreements for reasons such as obtaining financing or appeasing unions that could oppose permitting (or otherwise delay projects).

3. Toering Electric 351 NLRB No. 18 (Sept. 2007).

To get back pay in any amount, a union salt must first demonstrate that he or she was genuinely seeking employment when applying for a position.

 

In this case, the NLRB said it would no longer presume that every rebuffed job applicant was a victim of an unfair labor practice. The board also said, however, that employer-supplied evidence casting doubt on an applicant’s intentions will be required before it will rule that a refusal to hire isn’t discriminatory.

 

The 3-2 decision here is intended to stop salts from seeking jobs solely to generate unfair labor practice charges against open-shop contractors. In a dissent, the minority criticized the decision for failing to offer clear guidance on how an applicant’s genuine interest should be determined.

4. Dana Corp., 351 NLRB No. 28 (Sept. 2007).

The NLRB ruled that employees may file decertification petitions for up to 45 days after they learn that their employer has recognized a union, based on a card-check majority. The board had previously barred election petitions immediately after card-check recognition — a practice the board now says didn’t give employees adequate opportunity to opt for secret balloting.

5. BE & K Construction Co., 351 NLRB No. 29 (Sept. 2007).

Contractors may sue unions in retaliation for a union engaging in protected activities, such as picketing job sites in an effort to delay construction, the NLRB ruled. If such suits are reasonably based, the board said, they aren’t unfair labor practices — even if the suits are ultimately unsuccessful.

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