NLRB pro-union activism on the rise

Recent decisions by President Obama’s appointees on the National Labor Relations Board (NLRB) reflect a clear intent to support and promote union organizing efforts and procedural changes that will strengthen union bargaining power.

The manufacturing sector had been a traditional focus of union organizing activities, and the current board’s express interest in facilitating those activities is likely to encourage unions to look at smaller manufacturing companies that have not previously been viewed as viable targets.

Manufacturers hoping to maintain a union-free environment should remain alert for signs of organizing efforts among their employees, and pay close attention to proposed changes in federal rules that are designed to increase employees’ awareness of their right to organize unions in the workplace and participate in collective bargaining on issues related to compensation, benefits and working conditions.

The NLRB is a politically motivated body which exerts tremendous influence on labor/management relations by:

• Overseeing union elections and adjudicating unfair labor practice (ULP) charges under the National Labor Relations Act (NLRA);
• Filing lawsuits to challenge state laws perceived to be in conflict with the NLRA; and
• Issuing General Counsel Memoranda that control case handling procedures.

Controversial NLRB decisions are often reversed by subsequent boards appointed by a president from a different political party. The five-member board was reduced to two members at the end of President Bush’s term and the beginning of President Obama’s term when politically charged appointments were blocked by opposing political forces in Congress.

President Obama finally obtained a full five-member board one and a half years after he was inaugurated. The Supreme Court recently ruled in the New Process Steel case that the decisions of the two-member board that operated for more than two years were not authorized under the NLRA, creating uncertainty for the parties that were the subject of those rulings.

The current board is the first with a Democratic majority in nearly 10 years, and has predictably demonstrated a decidedly pro-union bias. Board Chair Wilma Liebman sees it as her job to “make sure that our labor law evolves and the rights it protects do not become illusory.”

In the fall of 2010, the board ruled that “bannering” is permitted to encourage boycotts of businesses using non-union contractors; 16-foot-long banners declaring “SHAME” and urging customers not to patronize the establishments were not viewed as “coercive,” but rather were deemed to be in the same class as handbills, which have traditionally been allowed as expression of “protected speech.”

Several elections rejecting unions in manufacturing facilities have been overturned by the new board, which ordered new elections based on questionable and contested facts involving:

• Election observers too closely aligned with management
• Employer surveillance too close to the voting site
• Improper “surveillance” by security guards
• Management’s solicitation of grievances pursuant to past practice that pre-dated the union’s election petition
• Refusal to allow employees to wear union T-shirts — even though company policy required employees to wear company uniforms

It is interesting to note that managements’ attempts to obtain new elections following union victories have met no such success. For example, the board dismissed one employer’s objection based on threatening letters sent from elected public officials to unit employees.

Decisions and consequences

In a very troubling decision, the NLRB decided to prosecute an unfair labor practice charge against an employer based on its preliminary determination that an employee’s complaints about her supervisor in her personal Facebook postings constituted “protected concerted activity” and that her termination for the postings and the company’s internet policy prohibiting disparaging remarks about the company and its supervisors both constituted unfair labor practices. The decision to pursue this ULP charge “persuaded” the employer to enter a private settlement with the employee and an agreement with the NLRB to modify its rules which had restricted employees from discussing wages and working conditions with co-employees while not at work.