Day 138 - 20 Jun 95 - Page 60
1
2 Q. So you would be cutting off the nose to spite the face if
3 you ordered certification of a union just because there had
4 been a breach of some legal requirement by the employer?
5 A. Can I help your Lordship?
6
7 Q. Yes.
8 A. OK. I have litigated on behalf of unions and the NLRB
9 several -- is called section 885 of the Act when I was with
10 the National Labour Relations Board. There is much debate
11 over whether or not the NLRB should certify a minority
12 union, someone who does not really represent all of the
13 workers, but the body of law that has developed in the US
14 is that if the employer has engaged in significant unfair
15 labour practices so that the employer has destroyed -- they
16 call it laboratory conditions -- the environment for a free
17 election, that they will certify a minority union in those
18 circumstances. One of the things, basic tenet of the
19 National Labour Relations Act is ensuring that there is no
20 firing of people because of union activity because the NLRB
21 does consider that to be -----
22
23 Q. But it is a modified form of certification then, a minority
24 union, is it?
25 A. No. It goes to all employees. There is no such thing
26 -- I know here in Europe you can -- I am going to use
27 American terms that may not fit -- you can certify a union
28 as representing a portion of a unit, seven employees out of
29 20. That concept does not apply in the United States. If,
30 in fact, the employer has committed unfair labour
31 practices, even though it may only affect one, two or thee
32 people, if it be terminations -- and I will tell you I
33 have litigated many of those cases -- the Board will find
34 sufficient reason for certifying the union.
35
36 It is something that has always been the subject of
37 debate. But that -- and there have been some inconsistent
38 findings but that has been the prevailing view. If the
39 laboratory conditions have been disturbed where you cannot
40 hold an election because of the chilling of the
41 environment, they will impose that standard.
42
43 Q. I understand the service of the laboratory conditions and
44 what may be the principle behind that, but it is not, is it
45 a discretionary thing for the NLRB?
46 A. Somewhat discretionary, but if there is -- we had a
47 term when I worked there; if you had 183, you win the
48 case. There is activity, and I do not mean to get into a
49 long, protracted explanation, there is what they call 881
50 activity which is, perhaps, someone was questioned about
51 their union sympathies.
52
53 Q. I do not think you need go any further. It obviously
54 depends upon the extent of the illegality ------
55 A. Exactly, but that 183 would be sufficient from
56 everything that I have seen.
57
58 MR. RAMPTON: I think, Mr. Stein, you told us earlier the one
59 area of discretion is that the NLRB may say: "We are not
60 going to certify you, but you have to do the election
