Ask almost any veteran management-side labor attorney about the current National Labor Relations Board (NLRB) and he will make two points: First, the board always shifts from favoring business to favoring unions when control of the White House changes, and second, the current board has made an unusually sharp shift to the left.
“The NLRB has traditionally swung a pendulum back and forth depending on which party is in power, and that’s historical back to the founding of the NLRB,” says Charles Caulkins, a partner at Fisher & Phillips.
The president also appoints the NLRB general counsel, the agency’s chief prosecutor. The current acting general counsel, Lafe Solomon, has been unusually aggressive in seeking cases that will overturn Bush board precedent and in issuing memorandam to the regional offices seeking more aggressive action against companies accused of unfair labor practices. He also stirred a firestorm by filing a complaint asking that Boeing be forced to move production from a new plant in the right-to-work state of South Carolina to the state of Washington, where most of its workers are unionized.
Solomon and the current board took power about the same time that the unions’ key legislative priority—the Employee Free Choice Act (EFCA)—died in the Senate. Many believe the board is focused on achieving through case law and rulemaking what EFCA intended—a union representation election process that would help unions regain strength after years of decline.
Activity on the state level was spurred by signals from the NLRB that it would help unions increase their ratio of success in organizing campaigns, albeit without card-check. Those signals include memos from Solomon to the regional offices urging them to seek more court injunctions against employers during organizing campaigns, specifically in cases where the employer allegedly fired an employee to “nip [a union movement] in the bud.” He also advocated enhanced penalties for alleged unfair labor practices during both elections and first contract negotiations.
“Put those memos together and you see a clear effort to enhance remedies available [to unions] in the area where EFCA was focused,” Yerkes says. “It is not a stretch to say that the board is looking to implement EFCA through administrative action.”
While unions contend the change is needed to counter an unfair advantage employers enjoy, Yerkes disagrees.
“There is no factual basis to suggest this change is needed to level the playing field,” Yerkes says. “Unions already win 63.8 percent of all elections. Quite simply, this is an attempt to limit an employer’s ability to communicate its side of the story to its employees.”
However, the NLRB won round one of what is expected to be a protracted legal battle. On June 30, an administrative law judge in Seattle denied Boeing’s request to dismiss the lawsuit. The ruling allowed the NLRB to present its case in proceedings that were expected to last through the summer.
Mike Eastman, executive director of labor policy for the U.S. Chamber of Commerce, says the Boeing complaint has stirred up an unprecedented level of controversy because of the remedy it seeks—moving the work back to Washington after the company made a huge investment in the new plant.
In addition to its landmark efforts to change union election law and limit an employer’s right to choose production locations, the NLRB has tackled several cases setting less critical but important precedents.
Coxson says the case has implications for employers in a wide range of industries because unions often use huge inflatable rats to protest at construction sites, gas and electric companies, and other worksites.
“It really is a serious blow to the protections put into the [NLRA] in 1947 to protect employers who have no dispute with their employees,” he says.