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NLRB Activism Remains Worrisome

on Wednesday, 29 January 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

Given the choice between seemingly never-ending political gridlock or compromise, reasonable minds usually prefer compromise. That premise will soon be tested, compliments of a fairly recent agreement in the Senate to confirm and fully staff the National Labor Relations Board (NLRB). A fully staffed NLRB may seem inconsequential except for the fact that the Board has not operated at full strength since President Bush occupied the White House over a decade ago.

During the current and previous administration, the NLRB consistently limped along at less than full strength despite remedial attempts by both President Bush and Obama. Both Presidents unsuccessfully tried to secure the Senate’s constitutionally-required “advice and consent” for their proposed NLRB nominees. Frustrated by the gridlock, President Obama eventually resorted to a controversial new tactic – appointing NLRB members during temporary Senate recesses. That tactic led to a still pending constitutional challenge that will likely be decided by the United States Supreme Court later this year. (National Labor Relations Board v. Noel Canning)

When the recess appointment case is heard, the Supreme Court will be deciding the constitutionality of past decisions by Obama appointees who were afforded their authority without the “consent” of the Senate. The constitutionality of the current NLRB, and in theory its future decisions, are no longer in doubt because of the above referenced Senate compromise in late 2013.

Given that fact, management advocates are anxiously waiting to understand exactly how the NLRB will exercise its newly legitimized authority. Specifically, how far is the current Obama-appointed Board willing to advance the President’s first term promise to “play some offense” to reverse organized labor’s multi-decade decline?

Conversely, labor advocates see the current Obama-appointed Board as a great opportunity to reverse historic NLRB disappointments, and to secure entirely new rights, particularly in the area of union organizing. Consider the following possibilities, all of which are on organized labor’s agenda, and potentially realistic wish list:

Quickie Elections: In 2012, the Board issued “new rules” that essentially cut in half the typical duration between the filing of a union petition for representation rights and the actual date of the secret ballot election to determine the employees’ preferences. Not coincidentally, history proves unequivocally that the shorter the pre-election period, the higher the union success rate. That rule-making change was immediately challenged, and at least temporarily stopped, in part due the absence of a quorum of voting Board members supporting the rule change. Now that the NLRB is back at undisputed full strength, the Board is free to re-issue the quickie election rules in their original, or a revised, form.

Access to Employer Property: The NLRB has historically balanced employers’ property rights and employees’ organizing rights by affording employers the right to prohibit non-employer organizers from entering their premises while giving employees the right to use non-working areas to engage in organizing activity. Labor advocates are now seeking “equal access” so that non-employee organizers can speak directly to employees inside the employers’ premises.

Email for Organizing Purposes: Currently, the NLRB permits employers to “draw a line” between charitable and noncharitable email solicitations, and personal versus commercial solicitations. That distinction has resulted in email-organizing activity being lawfully prohibited under some well-tailored email policies, even when employees under the same policy have some opportunity to engage in non-business related email use. Labor advocates want expanded employee rights to use employer email systems to pursue organizing activities.

Representation During Disciplinary Investigations: Union represented employees currently have the right to the physical presence of a union representative anytime their employer conducts an investigatory interview that may lead to discipline. Labor advocates intend to extend this protection to non-union employees so that they may also have a witness or representative present when they are asked questions that may have disciplinary consequences.

Access to Employees’ Personal Email Addresses: After a petition for representation rights has been filed with the NLRB, unions currently have a right to the names and home addresses of eligible voters. Labor advocates want to expand that right to include the employees’ personal email addresses, regardless of whether employees prefer to keep their email addresses confidential.


It is too early to predict whether any or all of labor’s current wish list will become reality. What is clear, however, is that the President’s inclination and the NLRB’s current majority has never been more suited for significant pro-labor change. As always, we’ll keep you posted on future developments.


Mark E. McQueen

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