House Subcommittee Critiques Aggressive Agenda at National Labor Relations Board

Today, the U.S. House of Representatives Subcommittee on Health, Employment, Labor, and Pensions conducted an oversight hearing titled, “What Should Workers and Employers Expect Next From the National Labor Relations Board?” The witnesses represented labor and management perspectives. As background for the oversight hearing, in a June 23 press release the subcommittee commented on the National Labor Relations Board’s (NLRB) pro-union actions in recent years, including the ambush election rule and its efforts to restrict “worker access to secret ballot elections.” The press release also included commentary on “the future of labor-management relations,” including whether employees may use work email accounts for union organizing, the proper standard for determining joint employer status, and the pending decision in National Labor Relations Board v. Noel Canning on the constitutionality of the January 2012 non-recess recess appointments to the NLRB, which the Supreme Court of the United States will issue in the next week. As part of the committee’s continued oversight, today’s hearing afforded members an opportunity to examine these and other issues pending before the NLRB. The opening statement of Subcommittee Chairman Phil Roe (R-TN) provided,

In response to a steady decline in its membership, union bosses have increasingly relied on federal agencies to tilt the balance of power in their favor. The NLRB is at the center of this effort, promoting a culture of union favoritism that makes it virtually impossible for employers and workers to resist union pressure.

Under President Obama’s watch, the board has restricted access to the secret ballot, advanced an ambush election rule that will stifle employer free speech and cripple worker free choice, and begun to bless micro unions that will tie employers up in union red tape while undermining employee freedom in the workplace. The NLRB even went so far as to try and dictate where a private employer could and could not create jobs. I could go on and on.

Additionally, there are cases before the board right now that threaten to further stack the deck in favor of the administration’s union allies. For example, the board has requested feedback on how to determine joint-employer status under the National Labor Relations Act. A standard has been in place for 30 years to determine when two employers share immediate and direct control over essential terms and conditions of employment, such as hiring, firing, discipline, and supervision. This isn’t a new concept, so the board’s recent solicitation is highly suspect and strongly suggests it’s eager to abandon existing policies in favor of a new standard more favorable to union interests.

The board may also be looking for ways to give union organizers greater access to employer property, most notably employers’ email systems. The board has always instructed employers that any policy limiting the use of work email must be enforced in a non-discriminatory way, which means employers cannot treat unions any differently than other non-charitable organizations. This provides employers a clear standard to follow and union organizers a level playing field to work on. It’s likely the current board majority will seek to impose a fundamentally different approach, one that would give union organizers practically unfettered access to employers’ email systems.

On their own these may seem like relatively minor issues. However, they are part of a larger pattern that is generating a lot of uncertainty, confusion, and anxiety in workplaces across the country. Every member of this committee supports the right of workers to freely choose whether or not to join a union. It is ultimately a decision that rests with each and every individual worker; federal policymakers don’t have the authority to make that choice for them. Today’s hearing is part of the committee’s continued oversight of the NLRB, but more importantly, part of our commitment to defending the rights of workers and employers.

In his opening, Chairman Roe also took the opportunity to criticize the Obama administration for promising, in the Chairman’s words, “a period of strong growth and job creation,” that four years later remains a national jobs crisis. According to Chairman Roe, “it will take four more years before we close what’s known as the jobs gap, the number of jobs destroyed by the recession plus the number of jobs we need to simply keep pace with population growth.”  Moreover, Chairman Roe accused the Obama administration of “promoting a partisan agenda at the behest of powerful special interests,” including the NLRB.

This is another in a series of congressional oversight hearings on the direction of the NLRB that is not expected to slow down the Board. Short of Congress’s restricting funding to enforce the Board’s rulemaking in areas such as the proposed changes to the union representation election rules, or the so-called “quickie” or “ambush” election rules, the Board will pay little heed to congressional criticism unless the Supreme Court acts to overturn Board decisions. That’s exactly what might be coming in the next few days with the Supreme Court’s anticipated Noel Canning decision.

Ogletree Deakins’ Traditional Labor Relations and Governmental Affairs practice group leaders will keep you informed of these and other pending issues, as well as the NLRB’s upcoming activities.