Salts have to want the job. In what many see as the most important of the rulings, NLRB held that a job applicant must truly, or "genuinely," want the job for which he or she applies (Toering Electric Co., 351 NLRB 18, 9/27/07). Union members have often applied for jobs only in order to organize existing employees and make trouble for the companies they pretended to want to work for.

But employers were in a bind until this ruling: If they suspected an applicant of being a salt, and refused to hire the person, they could be accused of discriminating on the basis of union membership--a real NLRB no-no. Now the Board has said that if an applicant is turned down and charges antiunion bias, the employer will be given a chance to offer evidence to the Board that the candidate didn't really want the job at all.

Some strikers can be replaced. In the past, if long-time strikers asked--with no strings attached--to be reinstated by the company, the employer was obligated to take them back. In order to do so, they needed to fire employees hired permanently to replace the strikers. The rationale was that the replacements had been hired as at-will employees--those who could be fired for any reason at all.

But NLRB has now ruled that 'economic strikers'--those who walked out to protest some aspect of their working conditions, wages, or hours--can be permanently replaced and needn't be reinstated when the strike is over. To qualify, employer and replacements must clearly agree that the hiring is intended to be permanent. Board members noted that all employees, including strikers, were hired at will, and permanent replacements shouldn't be fired on that basis (Jones Plastic & Engineering, 351 NLRB 11, 9/27/07).

Change for 'card check agreements.' If a union could show an employer sufficient employee support for organizing--specifically by offering cards signed by a majority of employees--the employer could agree to recognize the union. That has meant, for the past 40 years, that the union had the right to a full 12 months to hammer out a collective bargaining agreement, including certain protections. Not only was the employer to negotiate in good faith, but it was barred from holding any other union elections during that year, even if it had evidence that the recognized union no longer had employee support.

NLRB has now changed that: Based on a card check, an employer and union can still try to negotiate a contract, but the 12-month election ban doesn't apply (Dana Corp, 351 NLRB 28, 9/29/07).

Insights from our In-house Expert

We asked BLR legal editor Lynda D. Rizzo, J.D., to explain some of the ramifications of the trio of NLRB rulings that seem to give employers a bit more leeway. For example, we asked, how would an employer go about showing NLRB that a particular applicant who has charged an unfair labor practice didn't really want the job, anyway? The person has complained that the company's failure to hire him or her was prompted by antiunion bias.

Looking at NLRB's rulings, Rizzo said the whole question would be approached according to the legal "burden-shifting" approach. NLRB would say there was an application, so the applicant must have wanted the job. The employer would counter that it didn't seem so. For example, the employer might show that the person had turned down a similar job with the same company in the recent past or that the application contained belligerent or offensive comments. The employer could also counter by producing evidence that the candidate was disruptive, insulting, or antagonistic during the application process; or that there was other conduct, including an incomplete application, inconsistent with a genuine interest in being hired.

In keeping with burden-shifting, NLRB would then have to show that the individual truly did want the job. The Board also explained the International Brotherhood of Electrical Workers targeted a particular Michigan contractor, sending members to apply for jobs with the sole purpose of filing unfair labor practice charges when those candidates weren't hired.

Moving on to the rights of strikers, not all union employees who walk out are affected by the new NLRB ruling: Those who strike because of what they charge is an unfair labor practice by the employer, even if that's only one of the reasons for the strike, still have the right to reinstatement. And wild-cat strikers, not authorized to walk out by their union, have no reinstatement rights.

As for employers' rights to allow other union elections during the 12 months after a card check agreement, there are also exceptions to that ruling. Two more secure ways for a union to gain an election-free year for negotiating a contract with the employer are either to allow a secret ballot vote or to petition NLRB. The Board acknowledged that card checks allow for employees to be intimidated or pressured, including false arguments by the union, into signing cards. Freedom of choice is a surer bet in a secret ballot election. With either secret ballots or a petition to NLRB, supervision by unbiased NLRB employees is a factor, as it is not with card checks.