The National Labor Relations Board 2015-2016: Disregarding Precedent and Common Sense to the Detriment of American Employers

Jamie Spradley: Member Spotlight (October 2016)
October 7, 2016
Xavier Smith: Member Spotlight (November 2016)
November 1, 2016

The National Labor Relations Board 2015-2016: Disregarding Precedent and Common Sense to the Detriment of American Employers

For our latest Employment Law Update, we turn to the area of Labor Relations. The following is an excerpt prepared by friend of the Chapter, Brent Wilson Esq. We asked Brent to provide his thoughts on the current National Labor Relations Board and its work as it relates to our work as HR professionals. For a complete copy of the white paper, including details of relevant cases, send a request to counsel@naaahratl.org.   -Damon

 

The NLRB stayed busy this past year with a number of seemingly nonsensical opinions that almost universally supported unions and their members.  When confronted with an unfair labor practice charge and an inapposite Board ruling, employers increasingly had to rely on the federal courts to apply some semblance of fairness in determining the law under the NLRA.  Even then, some courts still deterred to the Board, and in so doing, severely damaged American employers’ ability to successfully and efficiently run their businesses.  This paper will discuss some of the more noteworthy and controversial opinions in the last year or so.

NLRB Jurisdiction

As a preliminary matter, it is important to determine the source of the NLRB’s power and how far its jurisdiction extends.  Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees, to encourage collective bargaining, and generally protect the U.S. economy from practices deemed harmful to American workers, and by extension American businesses.  In recent years, and during union-friendly presidential administrations, the Board has increasingly intruded into matters that employers previously governed themselves.

The Board has jurisdiction over private sector employers who engage in more than de minimis interstate commerce.  Anyone familiar with the interstate commerce clause and Supreme Court rulings interpreting it knows that this makes the NLRB’s jurisdiction exceedingly broad.  It covers the vast majority of private sector employers, including non-profits, employee-owned businesses, labor organizations etc.  This means that it likely applies to you.

Examples:

Retailers: Employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more.

Non-retailers: For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state or purchased by the employer from out of state, either directly or indirectly.  The Board asserts jurisdiction when annual inflow or outflow is at least $50,000.

 

Special Categories:

Channels of interstate: Business providing links in transportation of goods or passengers, including trucking and shipping companies, private bus companies, warehouses, and packing houses with a minimum gross annual volume of $50,000.

Healthcare and Childcare Institutions: Hospitals, medical and dental offices, social services organizations, childcare centers, etc., with gross annual volume of business of at least $250,000 and nursing homes and visiting nurses associates with a minimum annual volume of at least $100,000.

Law Firms and Legal Services Organizations: Minimum gross annual volume of $250,000.

Cultural and Educational Centers: This category includes private and non-profit colleges, universities, other schools, art museums, symphony orchestras and the like.

Federal Contractors: Private contractors who work with the federal government automatically fall under NLRB jurisdiction regardless of the amount involved.  The Department of Labor (“DOL”) also requires federal contractors to post a notice of rights poster.

Religious Organizations: The Board will not assert jurisdiction over a religious organization whose employees are involved in effectuating the religious purpose of the organization.  However, given recent Board rulings, it has become increasingly difficult to determine when an employee is doing so.

Again, given the breadth of NLRB jurisdiction, it likely applies to your business.  For more information, you can consult: https://www.nlrb.gov/rights-we-protect/jurisdictional-standards

 

Composition of the Board:

The Board typically has 5 members appointed by the President with Senate consent.   Each member serves a 5 year term.  Currently, there are only 3 members, Mark G. Pearce, Chairman (long time plaintiff and union lawyer), Lauren McFerran (a former aide to Senator Ted Kenney and former Chief Labor Counsel for the Senate Committee on Health, Education, Labor and Pensions) and Phillip Miscimarra, the lone Republican and employer-friendly member.  From an employer perspective, Mr. Miscimarra’s opinions often represent the sole voice of reason in otherwise utterly unreasonable decisions.

The General Counsel:

The President appoints the General Counsel to a four year term.  The General Counsel operates independently from the Board and investigates and prosecutes unfair labor practices cases.  Richard F. Griffin, Jr. is the current General Counsel.  He has long represented unions and served on the board of directors of the AFL-CIO Lawyers Coordinating Committee.  To say he has been aggressive in pursuing employers would be an understatement; although his aggression is merely indicative of the larger Obama administration agenda, including the DOL.

Executive Summary and Conclusion:

With the current composition of the Board, employers have almost no chance of successfully opposing an unfair labor practice charge.  So, with that in mind, what can you do?

First, treat your employees fairly and with respect.  The best way to avoid union problems is to avoid unions to begin with.  As we saw in the MikLin case, the employer’s sick leave policy certainly could have been more employee friendly without adversely affecting the bottom line.

However, the employer dug its heels in unnecessarily and caused many of its own problems rather than simply engaging its workers and coming to some sort of compromise.

Second, when drafting rules and policies found in your employee handbooks, be cognizant of recent NLRB rulings.  While William Beaumont Hospital demonstrates the difficulty of navigating the seemingly ever-changing waters of NLRB precedent, one should always try to be specific as to the conduct one is trying to prevent.  The more general the prohibition, the easier the NLRB can claim that it somehow infringes on protected employee activity.

Third, never retaliate.  We all know employees can be difficult, and when unions become involved, they can become even more so.  While the decision to terminate or discipline an employee ultimately boils down to a business decision, it is important to remember the possible ramifications, be they legal or administrative, down the road.  While we would never recommend a complete, hands off, total acquiescence approach with problem employees, you must carefully choose your battles.

In that vein, as we have seen with the cases above, many times when a union is involved, you simply cannot win if you reach the NLRB, despite having both facts and precedent on your side.  It calls to mind the 1980s Matthew Broderick classic, “Wargames.”  While the computer there referenced nuclear war, its wisdom is also applicable to disputes involving the NLRB: “The only winning move is not to play.”

 

Brent is a partner with Elarbee, Thompson, Sapp & Wilson, LLP, in Atlanta and can be contacted at bwilson@elarbeethompson.com

 

Check back on the 1st of next month for the next issue!


Damon Elmore

 

 

We’d love to hear from YOU! If you have any questions or suggestions, feel free to contact Damon directly at (404)518-5759 or counsel@naaahratlanta.org.

 


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