In the wake of the 2014 midterm congressional elections, conservative organizations have released a mandate document analyzing areas where voters showed, through their selection of representatives, what issues should receive congressional attention.
One such area concerns the National Labor Relations Board (NLRB). For far too long, the NLRB has been a tool of big labor, using its power to coerce America’s job creators into acquiescing to labor’s demands. The mandate document shows a few areas where the NLRB’s actions have been particularly problematic.
For instance, the NLRB is currently rushing headlong to change the definition of what a joint employer is, in an effort to make unionization campaigns easier for labor organizations to win. If successful, this change will have significant repercussions throughout not only the entire sector of the economy that operates franchise systems, but also to any employer that uses sub-contractors. Under the NLRB’s change, an employer could be liable for the actions of personnel who are not under the employer’s control, creating massive headaches for the employer community while ensuring job security for the labor and employment lawyers who will be retained to figure out how all this works.
Additionally, the mandate document speaks to the systemic problems caused by the very structure of the NLRB. As currently constituted, the bulk of the NLRB’s operations are controlled by its General Counsel, who acts both as investigator and prosecutor of cases before the Board, and also acts as its lawyer in appeals that are taken after NLRB decisions.
The General Counsel’s exclusive, unreviewable power to bring or not bring cases before the Board means that he alone holds the keys to the “temple of justice” in these cases. If the General Counsel doesn’t want to bring a case then the injured party is left without recourse — a notion that is contrary to general principles of due process that everyone should have the opportunity to have their day in court.
Also, the NLRB’s membership changes every few years and with that change in membership comes changes in Board decisions that become the law of the land unless overturned by a U.S. court of appeals. This broken structure and the out-of-control actions by the General Counsel call for changes to how the Board functions. To start, the power of the NLRB to adjudicate cases should be returned to the U.S. courts.
While not perfect, the courts tend to be less political than independent agencies and should have the role of interpreting and adjudicating on labor law, much like they do for most other areas of law. Recent General Counsel activities and Board decisions illustrate the absurdity of the current system and the need for change.
Recently, the Board decided that an employer violated federal law by posting a memo titled, “Teamwork and Dignity and Respect,” along with a copy of its preexisting and indisputably proper policy on workplace violence. The memo and policy were posted by the employer after a unionization election had occurred and suggested that regardless of differing views on union representation that everyone abide by the existing policy and work to get along. The Board decided that the memo and policy were posted in response to union activity and somehow this could be construed by employees to chill their rights.
Even in those situations where no union is present, the Board has seen fit to engage in mission creep and attempt to micro-manage employers’ workplaces. It has done this by declaring what can and what cannot be in employer handbooks, even on issues as such as social media usage. The Board’s recent actions in this area are creating a labyrinth of rules that few employers will be able to navigate without an army of lawyers. Other benign policies that sound perfectly acceptable to any rational person have been deemed by the Board to be violations of federal law. For example, the following handbook language, according to the Board, is unlawful:
The absurdity of the Board apparently knows no bounds. It is well past time for Congress to fix it. Congress should take a hard look at the mandate document discussed above and work swiftly to make these much-needed changes.
Nathan Mehrens is president of the Americans for Limited Government Foundation. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions for editorials, available at this link.
