Recent changes at the National Labor Relations Board (NLRB) have resulted in a number of rulings favoring employers, leaving workers (both union and non-union) with fewer legal options. John Ring, a labor attorney who sides with management, was confirmed this month by the Senate as the fifth member of the independent regulatory body. In a somewhat controversial move, Ring was designated Chair of the board, replacing chairman Marvin Kaplan, who said he stepped aside voluntarily.
“I have supported Mr. Ring’s nomination to the NLRB from the start, understanding that, if confirmed, he would be designated Chairman. Like the President, I believe he will be an outstanding Chairman,” he told the Washington Examiner. With Ring’s confirmation, the NLRB now has a 3-2 Republican majority. It had such a majority last year, until Philip Miscimarra stepped down in December. With a renewed conservative panel, the Board has been championing employers over employees.
Boeing
In a decision involving the aircraft and rocket manufacturer, Boeing, the NLRB effectively sided with the multinational corporation, who argued that an NLRB rule was too constrictive with regard to employers. According to the rule in question, an employer could be said to have violated the National Labor Relations Act (NLRA) if they have instituted a rule that “reasonably tends to chill” a worker’s ability to act under the NLRA. Specifically, the Board has held that many rules tend to interfere with Section 7 of NLRA, which protects a worker’s right “to engage in […] concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
No Cameras
In Boeing’s case, the employer created a rule that prohibited the possession of devices containing a camera, purportedly to protect proprietary information and enforce certain security measures. However, according to employees and an Administrative Law Judge, this rule indirectly barred employees from pursuing “concerted activities.” The conservative NLRB disagreed with this argument, choosing instead to consider the point of view of the employer, who according to the Board, has a reasonable interest in preventing workers from taking pictures. As stated in the press release: “The Board majority reasoned that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.”
Conclusion
According to the NLRB’s decision, enforcement of Section 7 must adhere to a two-part test. First, the “nature and extent” of the impact must be determined, and second, legitimate justifications must be considered. The Board, in an attempt to “bring greater clarity,” announced three categories of rules to be delineated. Each of these is essentially an elaboration of the two-part test. Most importantly, the NLRB decided to give greater weight to “legitimate justifications” provided by employers.
Elections
The Board may also choose to revoke a rule instituted in 2015 to facilitate the election of union representatives. These regulations, sometimes referred to as “quickie election rules,” were introduced after 3-1/2 years of contemplation and comments. The Board decided to allow employees to use updated technology to contact and organize workers and to side-step some unnecessary litigation. With a continual decline in membership – from a third of all private sector workers in the 1950s to a mere 6 percent today – organizers are eager to protect their right to organize efficiently. Business groups, such as the US Chamber of Commerce, have lambasted these measures. Glenn Spencer, a Vice President at the Chamber, said this of the rules: “The Obama board made it as easy as possible for unions to organize, regardless of how disruptive it would be to an employer’s operations.”
These groups argue that the election regulations promote “ambush elections,” but as noted by the Economic Policy Institute, this criticism masks a more fundamental consideration: “[T]he corporate interest groups committed to rescinding the Rule and having Congress codify a mandatory waiting period for a union election simply want employers to have more time to defeat an organizing campaign.” What’s more, the rule doesn’t actually impede employers’ rights to combat union-organizing efforts.
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