Eye on the NLRB: how agency rulemaking could affect your business

NLRB trying to make big changes?

This post was written by Peter List of Labor Union Report with the title NLRB Moves to Humiliate Employers, Give Unions Access to Employees & Property.  I am reposting it here with his permission.     For that, he has my thanks.

While the article is very long, I thought it was worth sharing with you.   Peter is conservative by nature, and heavily biased in many of his views on labor relations issues, but what he portrays here could happen.  You should read it for your own edification. 

Here’s the scene:

Imagine yourself a small business owner with 50 employees or so. You’ve just spent the last two years of the Great Recession barely keeping your head above water, taking on some debt to keep your business viable. You’ve made a promise to yourself not to lay any of your employees off, but you also haven’t been able to give any raises, you’ve had to take away dental benefits, and everyone’s health care costs are going up this year because of ObamaCare.

At last, though, things are starting to look up a little and you finally have enough business to hire a couple of new employees.  After a fairly extensive search, you find a couple of candidates who seem like good fits. They’ve been unemployed for a while and seem really grateful that you’ve given them a job. It turns out, they’re pretty knowledgeable on running equipment and seem to get along really well with your other employees.

Well, a few months go by and one Friday afternoon, just before you’re to head home for the weekend, you get a fax from the National Labor Relations Board. The fax states that “unfair labor practice” charges have been filed against you and your company. Among other charges are those alleging that you fired a pro-union employee, interrogated employees, solicited grievances, made promises of benefits, and threatened to close…all illegal acts.

You contact your attorney and, through an inquiry to the NRLB, he finds out the basis of the charges, you learn that a union has targeted your company. Your attorney then advises you that you should probably settle the charges because they are pretty damning. How so? you ask.

Well, he tells you, it seems that, during your employee meeting a few weeks ago when you had promised that you were restoring the company’s dental plan later in the year, one of the new guys had asked you how you feel about a union, you said jokingly and off the cuff, “I’ll close my doors before I ever go union.” That was bad enough, your lawyer tells you, but then you allegedly asked the question, “Why? Do you want a union?” On top of that, he tells you, you fired a pro-union employee (never mind that you didn’t know that the guy was pro-union).

While you don’t remember all of the details of that meeting, the lawyer’s account (which he got from the NLRB) sounds pretty accurate. Now, your lawyer tells you, you can fight the charges which may cost you $50,000 to $100,000 and you’ll still probably lose, or you can settle the charges.

Here’s what the NLRB wants:

  • You must give the union a list of all of your employees’ names and addresses so the union can contact them at home
  • You must let the union post information on your bulletin boards
  • You must allow the union to come into your company and meet with your employees
  • You must offer full reinstatement to the pro-union employee, with backpay (even though he was fired for damaging a customer’s order—purposefully you suspect)
  • Lastly, you must stand in front of your employees and read out loud the posting of the settlement with the NLRB

If you don’t settle the charges, your lawyer tells you, the NLRB is prepared to go to federal court to get an injunction ordering you to comply.

Oh, and by the way, your attorney tells you, that pro-union employee (one of the new hires you had hired a few months back) appears to be a union salt—whose sole purpose was to get hired in order to unionize your company.

If this sounds implausible, it shouldn’t. It is precisely the machinery that the union-controlled National Labor Relations Board set into place…last month.

The Politics of Posters

Last month, three days before Christmas, the union-controlled National Labor Relations Board issued a controversial proposal to require all private-sector employers to post notices in the workplace advising employees about their rights to unionize. While the proposed rule would not take effect until after the 60-day public comment period closes on February 22nd, it has garnered much-earned ire and commentary throughout the employer community. However, while there has been much attention on the bright and shiny NLRB poster proposal, the NLRB’s Acting General Counsel, Lafe Solomon has been quietly slipping a garotte around the necks of the nation’s employers.

The NLRB’s Sleight of Hand

On December 20th, two days before the NLRB issued its poster proposal, Acting General Counsel* Solomon issued a Memorandum to all NLRB regional offices entitled Effective Remedies in Organizing Campaigns. As an instructional memorandum to the NLRB regions on the handling of certain types of cases, there is no need for public comment, hearings or the like. It has already taken effect.

Ostensibly, Solomon’s memo is to provide guidance to the NLRB regional offices when dealing with employer misconduct during unionization campaigns. Solomon’s memo details different levels of employer misconduct during union campaigns, from asking questions (interrogation) and making changes to working conditions, to firing pro-union workers, then gives several types of “remedies” for the regional offices of the NLRB to pursue.

This is not to excuse true employer misconduct in the four percent of cases where it actually occurs. However, knowing that it costs a union nothing to file unfair labor practice (ULP) charges and, as it happens routinely today, given the current bias of the NLRB, businesses should expect a sharp up-tick in the filing of ULP charges (whether frivolous or not).

It should also be noted that the National Labor Relations Board does not use the same standards that courts use when deciding guilt or innocence. In fact, it’s been said that the NLRB process is often a ‘trial by ambush’ and ‘guilty until proven innocent beyond a shadow of a doubt’ is the standard for employers at the NLRB. In addition, given that unions often deploy deceptive tactics (including paid and unpaid union “salts” to unionize companies from within), combined with the current NLRB being under the control of union bosses, it is easy to predict that employers will found be guilty of unfair labor practices when, in fact, they may be entirely innocent. This make Lafe Solomon’s so-called “remedies” all the more troublesome.

The Public Flogging Remedy

On page 6 of his remedies, Lafe Solomon calls for employers that have been found guilty by the NLRB to publicly read NLRB notices to assembled groups of employees:

Notice-reading remedies generally require that a responsible management official read the notice to assembled employees or, at the respondent’s option, have a Board Agent read the notice in the presence of a responsible management official.

[snip]

Furthermore, where a high ranking manager personally committed some of the violations, hearing that manager read the notice, or seeing him present while it is read, will “dispel the atmosphere of intimidation he created” and best assure employees that their rights will be respected.

On page 8, Solomon instructs the NLRB regions to order employers to give unions access to their bulletin boards, as well as to turn over names and addresses of employees to the union.

Where an employer unlawfully interferes with communications between employees, or between employees and a union, the impact of that interference requires a remedy that will ensure free and open communication. Allowing union access to the employer’s bulletin boards and providing the union with the names and addresses of employees will restore employee/union communication and assist the employees in hearing the union’s message without fear of retaliation. These access remedies assure the employees that they can learn about unionization and can contact union representatives in an atmosphere free of the restraint or coercion generated by an employer’s violations.

[snip]

An order requiring an employer to permit access to its bulletin boards will broaden the opportunity for employee/union communicationUnion access to bulletin boards permits employees to see, at the workplace, that open displays of union information are acceptable, and will better thaw the chilling impact of the violations than the bare recitation of rights in a standard notice posting.

Giving the Unions Employees’ Names & Addresses

On page 9 of Solomon’s instructions, the NLRB regions are instructed to require that employers turn over the names and addresses of employees.

“To neutralize the effect of the Respondent’s face-to-face restraint and coercion, it is necessary that the employees have ready access to union organizers and other officials who can explain to them the Union’s point of view with respect to organizational activities.” The names-and-addresses remedy “attempts to level a playing field that has been tilted against the employees’ organizational rights” by the employer’s unfair labor practices and enables the union to contact all the employees outside the work environment free from management’s watchful eye.

Open the Doors, Let the Organizers Come In

On page 10, Solomon goes for the jugular, instructing regions when it is appropriate to order an employer to allow union organizers on to company property to address employees.

If a Region determines that an employer’s unfair labor practices have had such a severe impact on employee/union communication that bulletin board access and names and addresses are insufficient to permit a fair election, it should submit the case to the Division of Advice with a recommendation as to why additional remedies are warranted, including: granting a union access to nonwork areas during employees’ nonwork time; giving a union notice of, and equal time and facilities for the union to respond to, any address made by the company regarding the issue of representation; and affording the union the right to deliver a speech to employees at an appropriate time prior to any Board election.

You can read Acting General Counsel Lafe Solomon’s entire Memorandum here.

Now, if the above weren’t bad enough, Lafe Solomon issued another memorandum on January 12th calling for the use of “Default Language” in the settlement of ULP cases.

The “Default Language,” which the NLRB is now, according to Atlanta-based labor attorney Mark Keenan, utiliizing in NLRB settlements nationwide is as follows:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/ compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party/Respondent defaulted on the terms of this Settlement Agreement.  The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/ compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations.  The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

Last week, President Obama issued an Executive Order to review regulations that could be hampering job growth. Unfortunately, the union-controlled National Labor Relations Board is likely to escape such review. As a result, it is only a matter of time before employers begin to realize that the President’s pro-business rhetoric doesn’t match the job-killing, anti-business deeds being committed by his pro-union National Labor Relations Board.

_________________

* The General Counsel, appointed by the President to a 4-year term with Senate consent, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases. On January 5th, President Obama nominated Acting General Counsel Solomon to the position of General Counsel for a full, four-year term. His nomination awaits Senate confirmation.

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