Supreme Court Rejects Appeal on Aliens' Right to Vote in Union Elections
Earlier this month, the United States Supreme Court declined to review a ruling from the Court of Appeals for the District of Columbia Circuit holding that unauthorized aliens are "employees" under the National Labor Relations Act (NLRA) and therefore entitled to cast votes in a union election.
In Agri Processor Co. v. NLRB, the employees elected the United Food and Commercial Workers Union Local 342 as their bargaining agent in 2005 election; however, the employer refused to bargain with the union on the basis that 17 of the 21 employees who cast ballots were not legally authorized to work in the United States, and therefore not "employees" under the NLRA.
In a 2-1 decision that was affirmed by the D.C. Circuit, the National Labor Relations Board held that the certification of Local 342 was valid because the voters were employees under the NLRA even if they were hired in violation of the Immigration Reform and Control Act. That decision will stand now that the Supreme Court has passed on its opportunity to review the case. With the passage of the Employee Free Choice Act appearing all but certain, authorization cards signed by unauthorized alien employees will likely be held valid as well.
"Permanent" Strike Replacements Can Be Employed At Will
Earlier this week, the Seventh Circuit Court of Appeals ruled that an employer does not violate the National Labor Relations Act by refusing to reinstate economic strikers because it had hired permanent replacements, even though those "permanent" workers are at-will employees. The decision in United Steelworkers v. NLRB upheld an earlier National Labor Relations Board ruling, also in favor of the employer.
The court upheld the NLRB's ruling board permissibly held that employer and the replacement employees had a "mutual understanding" that, despite an at-will clause in the replacements' employment applications, their employment was, for purposes of replacing the strikers, "permanent." The Court agreed with the NLRB that an at-will employment clause in the striker replacements' job applications did not make them "temporary" replacements who normally must be terminated in favor of returning strikers.
This ruling gives employers greater flexibility in hiring permanent replacement workers in the event of a strike. Nevertheless, whether an employer may "permanently" replace strikers in a particular strike is a very complex legal issue. In any strike situation, employers need to be very careful about whether to hire "permanent" or "temporary" replacement workers, and to only permanently replace strikers if they are legally entitled to do so. And in any event, employers may not ever replace a striking Tina Fey, because she's too funny.
