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The National Labor Relations Board's broad, literal interpretation of the word "employee" includes those company workers whom a union also pays for organizing, and is consistent with several of the National Labor Relations Act's purposes, such as protecting the right of employees to organize for mutual aid without employer interference.
Town & Country Electric, Inc., a nonunion electrical contractor, advertised for applicants for several licensed electrician positions; however, it refused to interview 10 of 11 union applicants who responded to the advertisement, and after hiring the 11th applicant, Town & Country dismissed the applicant after only a few days on the job. Members of the applicant's union filed with the National Labor Relations Board a complaint alleging that the employer had violated the National Labor Relations Act (29 USCS 151 et seq.) by refusing to hire the applicants because of their union membership. After an administrative law judge (ALJ) ruled in favor of the union members, the Board, in affirming the ALJ's ruling, expressed the views that all eleven applicants were employees under the Act, despite the facts that the applicants intended to try to organize the employer if the applicants obtained the advertised jobs, and the union intended to pay the applicants for their efforts to organizing the employer while working for the employer. The Board further held that the employer had committed unfair labor practices by discriminating on the basis of union membership (309 NLRB 1250). However, the United States Court of Appeals for the Eighth Circuit, expressing the view that people who work for a company while being paid by a union to organize the company were not employees under the Act and therefore were not protected by the Act from antiunion discrimination, reversed the judgment of the Board (34 F3d 625). The U.S. Supreme Court granted a petition for writ of certiorari to decide the meaning of the word "employee."
Could a worker be a company's "employee," within the terms of the National Labor Relations Act, 29 U.S.C. § 151 et seq., if, at the same time, a union would pay that worker to help the union organize the company?
The Court held that a worker may be a company's "employee," within the terms of the National Labor Relations Act, even if, at the same time, a union would pay that worker to help the union organize the company. The Court held that the NLRB's decision was lawful because its definition of the term "employee" was consistent with the broad language of the NLRA and common law. The NLRB correctly concluded that service to the union for pay did not involve abandonment of service to the company because the union organizers could limit their organizing to non-work hours. Nothing in the record suggested that acts of disloyalty were present, in kind or degree, to the point where the company might have lost control over the worker's normal workplace tasks. The Court found that there were alternative remedies available short of excluding paid or unpaid union organizers from the NLRA's protection.