(US) Labor Board Clarifies Reinstatement Rights of Striking Employees

[Omaha Steve]

Source: hr.blr.com

The National Labor Relations Board has ruled that at-will employment status does not detract from an employer's otherwise valid showing that it has permanently replaced striking employees.

The decision came in the case Jones Plastic & Engineering, 351 NLRB No. 11 and overrules Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.

An economic striker who unconditionally offers to return to work is entitled to immediate reinstatement unless the employer has hired a permanent replacement for the striker in order to continue its business operations during the strike. Mackay Radio & Telegraph Co. v. NLRB, 304 U.S. 333, 345-346 (1938). Thus, at the conclusion of a strike, an employer is not bound to discharge those hired permanently to fill the places of economic strikers, but permanent replacement status is an affirmative defense, with the burden on the employer to show a mutual understanding with the replacements that they are permanent.

Many employers hire employees on an "at-will" basis, meaning that they can be discharged at any time, with or without cause. In Target Rock, the Board opined that statements advising replacement employees of their at-will status "obviously do not support the espondent's position that the striker replacements were permanent." In Jones Plastic, the General Counsel asserted that because Target Rock could be read to deprive at-will replacement employees of permanent status, the law should be changed to make clear that at-will employment does not foreclose a finding of permanent replacement status.

Read more: http://hr.blr.com/news.aspx?id=77246

[HomerRamone]

1. Can anybody translate this into English?

It sounds important...

[Omaha Steve]

4. LABOR & EMPLOYMENT LAW — 10/09/07

http://hr.cch.com/news/employment/100907a.asp

In Jones Plastic & Engineering, 351 NLRB No. 11, the National Labor Relations Board announced that at-will employment status does not detract from an employer's otherwise valid showing that it has permanently replaced striking employees. The Board overruled Target Rock, 324 NLRB 373, 374 (1997), enfd. 172 F.3d 921 (D.C. Cir. 1998), to the extent it is inconsistent with that principle.

An economic striker who unconditionally offers to return to work is entitled to immediate reinstatement unless the employer has hired a permanent replacement for the striker in order to continue its business operations during the strike. Mackay Radio & Telegraph Co. v. NLRB, 304 U.S. 333, 345-346 (1938). Thus, at the conclusion of a strike, an employer is not bound to discharge those hired permanently to fill the places of economic strikers, but permanent replacement status is an affirmative defense, with the burden on the employer to show a mutual understanding with the replacements that they are permanent.

Many employers hire employees on an "at-will" basis, meaning that they can be discharged at any time, with or without cause. In Target Rock, the Board opined that statements advising replacement employees of their at-will status obviously do not support the espondent's position that the striker replacements were permanent." In Jones Plastic, the General Counsel asserted that because Target Rock could be read to deprive at-will replacement employees of permanent status, the law should be changed to make clear that at-will employment does not foreclose a finding of permanent replacement status.

A Board majority (Chairman Battista and Members Schaumber and Kirsanow) concluded that at-will employment status does not detract from permanent replacement status, stating that

we view as untenable any implication in Target Rock that conditions on hiring other than those enumerated in Belknap detract from a finding of permanent replacement status. Instead, we find that the status of the replacements hired by the Respondent in this case is indistinguishable from the status of probationary employees found to be permanent replacements in Kansas Milling, <97 NLRB 219, 225-226 (1951)>, and its progeny. In those cases, the probationary employees were subject to discharge without cause, and their post-probation employment was subject to their satisfaction of the employer's standards. As a matter of law, then, equivalent conditions imposed by the Respondent through its at-will disclaimers do not detract from other evidence proving the replacements' status as "permanent employees" for the purpose of federal labor law.

SEE the full article at link.

[leftist_not_liberal]

2. Natch, this means the employer can fuck the union member

by hiring a permanent employee but thanks to that new employee's 'at-will' status he can be fired at the whim of the employer.

"Permanent" = at the whim of the labor-leaching employer.

The government demonstrates once again it is of, by, and for the leisure class.

'Reform' is folly. The proof is in the news every day.

More Labor News:

LABOR & EMPLOYMENT LAW — 10/08/07
Divided NLRB allows 45-day window to challenge voluntary recognition

In a self-described "significant departure from pre-existing law," a divided National Labor Relations Board modified the recognition-bar doctrine to allow employees to file a decertification petition, or to support a rival union's filing of a decertification petition, for a period of 45 days following notification of card-based recognition. If a petition supported by 30 percent or more of bargaining unit employees is filed within the 45-day period, the petition will now be processed. The 3-2 decision overturns precedent applied in cases since 1966.However, the Board's ruling applies prospectively only.

Contract-bar modification. In addition, the Board announced that any collective bargaining agreement executed on or after the date of voluntary recognition will not bar a decertification or rival union petition unless notice of recognition has been given and no valid petition is filed during the 45-day period following the notice.

Official notice. The employer must post in conspicuous places an official notice supplied by the Regional Office of the Board informing employees of the recognition and their right to file a decertification petition supported by 30 percent or more of the unit employees within 45 days from the date of the notice for a secret ballot election to determine whether they wish to be represented by the union, or 30 percent or more of the unit employees can support another union’s filing of a petition to represent them.

Timing of signatures. The required showing of interest in support of the petition may include employee signatures obtained before or after recognition.

With or without neutrality agreement. The change applies regardless of whether a card-check and/or neutrality agreement preceded the union's recognition.

No change to "reasonable period" standard. If no petition is received within the 45-day period, the voluntary recognition bar will apply, which will bar the filing of election petitions for a reasonable time following voluntary recognition.
http://hr.cch.com/news/employment/100807a.asp

[fasttense]

3. Corporations can keep their scabs, even after the strike resolution.

Let's hear it for the poor, downtrodden, abused corporations. :eyes: