QUESTION: I have heard that Congress is currently considering a bill called “The Employee Free Choice Act.” What is the bill about, and how will it impact employers?

ANSWER

Overturning a National Labor Relations Board decision reinstating the terminated employee, the court said that the effect of stating that there were “gaping holes” in the business and that there were “voids” in the company’s critical knowledge base were damaging enough to warrant immediate termination; the employee’s later criticism of company management via an internet message additionally deprived him of protection.

“Permanent” replacements for striking employees who were required to sign an employment-at-will acknowledgment were not “temporary” employees, and the company was not required to reinstate strikers who unconditionally offered to return to work, the Seventh Circuit rules, upholding a National Labor Relations Board decision.

Under the National Labor Relations Act, an employer can deny reinstatement to “economic strikers” if it has hired permanent replacements in order to continue its business operations during the strike. The Court says: “The NLRA does not define what constitutes a permanent striker replacement; it does not delineate what evidence may be used to establish that an employee is permanent; and it is silent as to how offers of permanent employment interact with at-will employment, a ubiquitous, if not uniform, mode of employment. Under these circumstances, we must uphold the Board’s legal conclusions on how best to proceed unless its conclusions are ‘irrational or inconsistent’ with the NLRA.”

The NLRB had held that the employer can establish “a mutual understanding of permanence” with the replacements, and “ may impose other conditions of employment such as probationary periods, further testing and at-will employment” that would have been applicable even in the absence of returning strikers. The Court rejects the union’s contention that the company can have permanent replacements only if it offered binding contracts to those employees. The Court points out that if the company had discharged the permanent replacements to rehire the strikers, it “would have risked a promissory fraud or breach of contract lawsuit” brought by the fired replacements under state law. United Steelworkers v. NLRB

A temporary service agency who terminated an employee for breaching a confidentiality provision in his employment contract violated federal law, the National Labor Relations Board rules. The NLRB says that the agreement stated that the terms of employment, including compensation, were confidential, and that disclosure “to other parties may constitute grounds for dismissal.”

After a pay dispute with his employer, in which the worker told the client he was not getting paid in a timely manner, the company terminated him for “failure to live up to his end of the bargain.” An administrative law judge had initially dismissed the employee’s complaint, finding that since the confidentiality provision did not prohibit employees from discussing their terms and conditions of employment with one another, it did not violate the National Labor Relations Act. The judge further found the restriction on discussing terms of employment with third party clients had a “legitimate and substantial business justification that outweighed the restriction on employee rights.”

The Board reverses the judge’s decision, holding that the term “other parties” would lead employees to “reasonably understand that language as prohibiting discussions of their compensation with union representatives.” The Board says that accordingly, the confidentiality provision was “overbroad” in this respect, and a violation of the NLRA. Northeastern Land Services, Ltd. dba The NLS Group and Jamison John Dupuy

A company is required to bargain with a union, even though the majority of the workers who elected it were undocumented workers, rules a split panel of the D.C. Court of Appeals. The company had argued that undocumented aliens are prohibited from unionizing because they do not qualify as “employees” under the National Labor Relations Act.

Although the Immigration Reform and Control Act makes it illegal to employ undocumented workers, the Court says that it was possible that Congress “still intended that the NLRA apply to such aliens.” The Court observes that “there is absolutely no evidence that in passing IRCA Congress intended to repeal the NLRA to the extent its definition of ‘employee’ includes undocumented aliens.”

Circuit Judge Brett Kavanaugh dissented from the opinion, saying that he would hold that an illegal immigrant worker is not an employee under the NLRA “for the simple reason that, ever since 1986, an illegal immigrant worker is not a lawful ‘employee’ in the United States.” Agri Processor Co. Inc. v. NLRB

The U.S. Senate has defeated a bill which opponents said would have led to the loss of secret ballot union representation elections. The “Employee Free Choice Act” would have required employers to recognize a union based on authorization cards signed by a majority of their workers. Opponents argued that this could force unionization on unwilling employees; currently, employees may sign the card under union pressure but are free to change their mind in a secret ballot.

A union activist who listed the name of a co-worker as the sender of a complaint to management criticizing a supervisor was not engaged in activities protected by the National Labor Relations Act, rules a divided Sixth Circuit. The union activist had put the name of the co-worker on the parcel because he was concerned about retaliation for the complaint, and he thought management would be more likely to read the complaint since the co-worker was opposed to union affiliation. When management found out about the deception, it terminated the union activist.

The union argued that the employee’s falsification was done without malice, and was necessary for his complaint to be heard. The National Labor Relations Board found that this particular falsification was not done in good faith since it had the potential of harming his co-worker. The Sixth Circuit upholds the NLRB ruling, stating that the Court “cannot say that the Board must necessarily find malice per se to find a falsification disqualifying.” UAW v. NLRB