1. What factors did the Board rely on in making its decision?
2. Did the Supreme Court approve the NLRB’s rationale?
3. Did the Supreme Court offer direction to employers on how to deal with problems that could arise when dealing with paid union organizers as employees?

[Town & Country Electric, Inc., a nonunion electrical contractor, wanted to hire licensed Minnesota electricians for construction work at a paper mill in International Falls, Minnesota. Town & Country, through an employment agency, advertised for job applicants, but it refused to interview 10 of 11 union applicants who responded to the advertisements. Its employment agency hired one union applicant whom Town & Country interviewed, but he was dismissed after three days on the job.

The 11 members of the union, the International Brotherhood of Electrical Workers, filed charges with the National Labor Relations Board claiming that Town & Country and the employment agency had refused to interview or retain them because of their union membership. The National Labor Relations Board, in the course of its decision, determined that all 11 job applicants, including 2 union officials and the 1 member briefly hired, were “employees” as the Act defines that word. The Board recognized that under well-established law, it made no difference that the 10 members who were simply applicants were never hired. Moreover, the Board concluded with respect to the meaning of the word employee that it did not matter that the union members intended to try to organize the company if they secured the advertised jobs, nor that the union would pay them while they went about their organizing.

The U.S. Court of Appeals for the Eighth Circuit reversed the Board, holding that the Board had incorrectly interpreted the statutory word employee. In the court’s view, the term employee does not cover those who work for a company while a union simultaneously pays them to organize that company. Because this determination was in conflict with decisions by the District of Columbia Circuit and the Second Circuit, the Supreme Court granted certiorari to resolve the conflict.]

BREYER, J.…

The National Labor Relations Act seeks to improve labor relations (“eliminate the causes of certain substantial obstructions to the free flow of commerce,” 29 U.S.C. § 151 (1988 ed.)) in large part by granting specific sets of rights to employers and to employees. This case grows out of a controversy about rights that the Act grants to “employees,” namely, rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively … and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” § 157. We granted certiorari to decide only that part of the controversy that focuses upon the meaning of the word “employee,” a key term in the statute, since these rights belong only to those workers who qualify as “employees” as that term is defined in the Act. See, e.g., § 158(a)(1) (“unfair labor practice” to “interfere with … employees in the exercise of the rights guaranteed in Section 157 of this title”) (emphasis added).…

Several strong general arguments favor the Board’s position. For one thing, the Board’s decision is consistent with the broad language of the Act itself— language that is broad enough to include those company workers whom a union also pays for organizing.