NLRB Power Grab

What does a government agency do when it is slowly going out of business due to lack of support?  It does a power grab by creating new ways to file lawsuits against employers and it is going to require every private employer to post a notice to all their employees advising them that they can use this ageny.

That is EXACTLY what the National Labor relations Board has decided to do.  Work at the NLRB is way down.  Unions are unable to organize the private sector.  (We have almost a 90% win rate on Union organizing campaigns.)   The numbers are so bad that the NLRB is trying to figure out ways to create more work. 

What the NLRB has come up with are two items; one is a new procedure to go to Federal Court to require employees who were discharged during a Union campaign to be reinstated BEFORE there is a legal determination that they were unlawfully discharged.  In a conference I attended, I asked the Acting General Counsel for the NLRB who created this procedure what happens if the Federal Court puts the employee back to work, and then later it is determined that he was lawfully discharged?  His answer?  They never considered that as a possibility!!  I swear to you it is true.   He actually said that.

The next thing the NLRB is doing is seeking a new Federal Rule to REQUIRE every private employer to post a notice that their employees have a right to organize and form a union.  No kidding, after the law was passed in 1935, some 75 years later, the NLRB has decided that employees are not using the NLRB to organize their employers because they do not know they have this right. 

It is extremely unlikely that the NLRB has a right to actually compel these notices, and you can expect that organizations like the Chamber of Commerce will file a lawsuit to stop this NEW RULE the day the rule is published.  The total absence of any statutory authority to actually make employers post this notice will not stop the NLRB from trying to do this. 

Stay tuned for further developments.

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2 Responses

  1. That the Board would use rulemaking to assist in union organzing should not be unexpected. Member Becker indicated previouly he thought the Board could use the rulemaking process more muscularly.

  2. That is true. However, Member Becker is only one person on the five member NLRB Board and all THREE appointees by Democrats voted to do this. However, the NLRB just cannot make up rules that everyone must follow. There MUST be statutory authority for the NLRB to do this and I just don’t believe that authority exists to require all companies to post these notices. Thanks for your insightful comment..

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