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NLRB Makes it Easier to Prove Business Purchaser Discriminated Against Seller's Employees

Generally, if more than 50% of the employees hired by the purchaser of a business had been employed by the unionized seller of the business, the purchaser of the business will have a duty to recognize and bargain with the union as the representative of its employees. Sometimes a purchaser of a unionized business is accused of discriminating in its hiring practices against employees of the seller, so that less than 50% of its crew will have previously worked for the seller, in order to avoid having an obligation to bargain with the union.

Until recently, if an unfair labor practice charge was filed against the purchaser alleging that type of discrimination, there would have to be proof that: (1) the employer discriminated against the seller’s employees because they were affiliated with a union; (2) the employer had plans to hire people in openings for which the alleged discriminatees applied; and, (3) that the alleged discriminatees were qualified for those positions.

In a recent case, Planned Building Services, Inc., 347 NLRB No. 64, the NLRB decided to change that burden of proof. Now all that has to be proven is that the seller’s employees weren’t hired and that the employer was motivated by anti-union animus. Under the new standards, once that initial burden is met, the burden shifts to the employer to prove that it wouldn’t have hired the seller’s employees even if they hadn’t been affiliated with a union.

The Bush NLRB also changed the way damages are calculated if the purchaser discriminates against the seller’s employees. Instead of back pay being determined by the rate of pay paid by the employer who discriminated, in this case the purchaser, the NLRB said that the (normally higher) rate paid by the seller would be used in calculating back pay.

Interesting results from a supposedly pro-employer NLRB.

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