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Op-Ed: National Labor Relations Board
shift will harm workers and job creators
[The Center Square] Nathan Mehrens |
Institute for the American Worker
Recent changes to the
composition of the National Labor Relations Board and its general
counsel will mean significant changes in the law for private sector
collective bargaining. The board oversees unionization campaigns
authorized by the National Labor Relations Act (NLRA) and generally
plays referee between employees, employers and unions. |
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 Two new Democrat members were confirmed over the summer, giving
the board a full membership and a 3-2 Democratic majority. The U.S. Senate also
confirmed a new general counsel for the board after the president summarily, and
questionably, fired the previous general counsel.
The new general counsel, Jennifer Ann Abruzzo, was previously a
board employee for over 20 years. She quickly issued memos that set forth what
we can expect from her office. The general counsel determines the cases that are
brought before the board. As such, the areas of emphasis in the new counsel’s
memos provide a roadmap for the coming years.
Abruzzo is concerned with what is allowed to be in an employer handbook, what
types of confidentiality agreements can be entered into between employers and
employees, how union dues are handled if a collective bargaining agreement
expires, what information is given to employees who don’t want their money used
by the union for political purposes, and whether a person is an independent
contractor or an employee.
In these areas, employers cannot simply “do the right thing” to be in the clear.
They must follow a labyrinth of rules that are not always intuitive. While there
are some known practices that will get an employer in hot water, such as firing
an employee who is trying to unionize, many other seemingly benign activities
will now be subjected to greater scrutiny.
For example, what happens when an employer seeks to have the U.S. Post Office
install a postal box near the entrance of its facility so that its employees who
are voting their private ballots in a unionization election can do so in a more
convenient manner?
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This happened in a recent case where a union was
attempting to unionize Amazon employees. Despite losing by a
landslide, the union is attempting to get a second election on the
basis that Amazon’s conduct here violated the NLRA.
The board’s hearing officer’s report concedes that
there is no evidence of any ill effect on the election’s outcome
from having a post office box in that location, but nonetheless
found that the employer’s activity “so undermined the laboratory
conditions necessary to ensure a free and fair election” that a new
election is needed.
It is just as likely that the installation of this box resulted in
more votes for the union as for Amazon, but none of this can be
proven because the ballots are private. Given the current
composition of the board, Amazon will likely have a hard time
prevailing in this case.
Outside of elections, look for a return to the board’s past practice
of attempting to micro-manage work rules found in employee
handbooks. This could put employers in the position of not putting
rules in writing for fear of being subjected to unfair labor
practice charges. In some cases, having fewer rules in writing could
put employees in the position of having fewer workplace protections.
They will have a harder time understanding what is expected of them
because employers are not allowed to state those things explicitly.
Shifts in the board’s personnel and policy mean a new era in the
landscape of employer-employee relations. Employers will have to
figure out what is acceptable, one case at a time. Unions will
happily benefit. Employees will be caught in the middle, which is
not an enviable position.
Nathan Mehrens, a senior fellow at the Institute for
the American Worker, previously served as the Associate Deputy U.S.
Secretary of Labor. |
