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

Prev Next Index