US Labor Board Modifies Hiring-Bias Standard

[Omaha Steve]

http://hr.blr.com/news.aspx?id=77247

October 08, 2007
Labor Board Modifies Hiring-Bias Standard

The National Labor Relations Board has ruled 3-2 that an applicant for employment must be genuinely interested in seeking to establish an employment relationship with the employer in order to be protected against hiring discrimination based on union affiliation or activity. The board explained that "one cannot be denied what one does not genuinely seek."

The board further held that the General Counsel bears the ultimate burden of proving an individual's genuine interest in seeking to go to work for the employer.

The board majority held in In Toering Electric Co , 351 NLRB No. 18 that the presumption that any individual who submitted an application was entitled to protection was inconsistent with the text of the National Labor Relations Act and its basic purposes. Only applicants who are statutory employees within the meaning of Section 2(3) are entitled to protection against hiring discrimination, and statutory employee status, in turn, requires the existence of "at least a rudimentary economic relationship, actual or anticipated, between employee and employer." WBAI Pacifica Foundation , 328 NLRB 1273, 1274 (1999). No such economic relationship is anticipated in the case of applicants with no genuine aspiration to work for an employer. Thus, job applicants without a genuine interest in an employment relationship are not employees within the meaning of Section 2(3).

The case focused on salts (that is, individuals sent by unions to seek employment from a nonunion employer with the intent of obtaining employment and then organizing the employer's employees). The board said that a lthough some salts, paid or unpaid, may genuinely desire to work for a nonunion employer and to proselytize co-workers on behalf of a union, other salts clearly have no such interest.

The board said "submitting applications with no intention of seeking work but rather to generate meritless unfair labor practice charges is not protected activity. Indeed, such conduct manifests a fundamental conflict of interests ab initio between the employer's interest in doing business and the applicant's interest in disrupting or eliminating this business." Such conduct, the board said, also collides with the employer's right, recognized by the Supreme Court, to insist on employee loyalty and on a cooperative employee-employer relationship. NLRB v. IBEW Local 1229 (Jefferson Standard) , 346 U.S. 464, 472 (1953).

FULL story at link.