Why Now, NLRB?
As most people prepare for the holidays, it seems the National Labor Relations Board is preparing for revolution.
Over the last few months, we have been treated to an amicus request from the Board in the Dana post-recognition decertification setting (see our article, NLRB to Reconsider Decertification Bar Rule).
Roundy’s also elicited an amicus request (see our article, NLRB to Decide On Union Access to Employer Property). The Board seems to think that when a retailer lets a charity ring bells outside the store, a union can ring the retailer’s bells by calling for a customer boycott. (We are preparing an amicus in that case for the Retail Litigation Center, RILA’s legal arm, which is to be filed by January 7, 2011.)
But over the last weeks, the Board has gone into overdrive. Its Acting General Counsel is no longer satisfied having employers simply post Board “remedial” notices as a means of resolving unfair labor practice cases. He wants to force employers’ high-level executives to read the agency-dictated notices to employees, as well, in their native languages if necessary. This sanction, moreover, would not simply be sought in connection with Board-ordered remedies for violations found after formal hearings. It would be required as a condition for pre-trial settlement of certain complaint cases against employers, too. There is more: in appropriate cases (which or how many is unclear), the agency’s chief prosecutor would have the Board direct the employer to allow a stranger union, access to its bulletin boards and even provide the union with the names and home addresses of its employees — supposedly because the employer has improperly interfered with the union’s ability to communicate with them under normal circumstances. Access by union agents to the employer’s (not so) private property also is envisioned.
Further, the Board has issued a proposed notice of rulemaking that applies even to employers who have not been accused of labor law violations. It would require hundreds of thousands of workplaces to add to their official government notices bulletin boards a union rights poster from the NLRB that might be called, “Let-Me-Tell-You-How-to-Sue-the-Company-For-Free.” With dubious statutory authority, the Board also would toll the law’s six-month statute of limitations on unfair labor practice charges if the notice is not posted. It seems to suggest also that it may grant an automatic summary judgment if the notice is not where it should be. Tie this invitation to employees to complain about their employers to the tough remedies the Board is conjuring and you can see where this is going.
That’s not all. On December 22nd, the Board requested yet more amicus briefs in a case involving bargaining unit determinations for long-term health care establishments.
Richard Trumka, my old classmate from Villanova Law School who now heads the AFL-CIO, must be happy this Christmas with all these gifts. Or perhaps he is saying: “Santa, you’re late!”
Why all of this activity now? Because no one is paying close attention? Congress is leaving town, the President is on his way to Hawaii, the press is following him and the members of the public – including business people – are occupied buying presents for families and friends and preparing festivities.
Because NLRB Member Craig Becker’s recess appointment is up in a year and Chairperson Wilma Liebman’s term expires next August?
Because unions are smarting over EFCA’s defeat and angry that they have gotten very little for their dollars in hard and soft campaign contributions, and political operatives in certain quarters are fearful that without a return on their investment, they may be less generous in the future?
Or is it because after a new Republican-controlled House of Representatives convenes in January, the Board expects oversight hearings far less congenial than it has been used to in the last several years? And might it expect trouble also with appropriations from the same body?
Or maybe the Board majority and the agency’s Acting General Counsel really believe they are doing the right thing, as the statute can only protect individual employee rights by promoting union rights?
Or is it for all of these reasons?
Just one thing is certain: EFCA was about “what if.” This Board is about “what now.”
We will be hosting labor programs at all of our offices in the first quarter of 2011 to discuss these developments. The PowerPoint presentation is getting longer by the day.
