The NLRB: What it is and how it impacts workers

A disturbing pro-management trend is emerging

From the Massachusetts Nurse Newsletter
April 2005 Edition

By Joe Twarog
Associate Director, Labor Education & Training

The National Labor Relations Board is a federal agency that administers the National Labor Relations Act (NLRA); the law that governs collective bargaining in the private sector. The NLRB’s primary activities are:

• conducting elections to determine whether or not employees want union representation;
• investigating and remedying unfair labor practices by employers and unions.

The NLRB has 33 regional offices located throughout the country, with Region 1 (covering Massachusetts, Maine, New Hampshire, Rhode Island and Vermont) being in Boston. The board (NLRB) has a five-person body that heads up the agency based in Washington, D.C. These five board members are appointed by the president and approved by the Senate. They review and rule on appeals of decisions made by the NLRB regional directors (the Region 1 Director is Rosemary Pye). The board in effect sets and forms private sector labor law by its rulings that interpret the law.

Violations of the NLRA

The NLRA lists the types of violations of law by employer conduct that is illegal. In summary they are:

• statements or actions that interfere with, restrain or coerce union activity
• domination of unions (that is, any form of a “company union” that in fact the employer controls)
• discrimination against employees who engage in union activity
• retaliation against employees who file unfair labor practice charges
• refusal to engage in good faith bargaining with the union

There are many examples of such violations, including the following:
If the employer or hospital sets up a “nurses’ council” that deals with mandatory subjects of bargaining (issues involving wages, hours or working conditions), there may be a violation by implicitly establishing a “company union.” There has been such a trend lately as hospitals seek Magnet status, usually terming such experiments as “shared governance.”

If the employer intimidates or interferes with a union floor representative from doing his or her job, there could be a violation. Similarly, if the employer targets, harasses, or disciplines a union member for union activity, a violation may have occurred.

If the employer unilaterally changes a condition of employment (meaning without formally bargaining with the union) involving a mandatory subject of bargaining, a violation occurs. Such a unilateral change may be the imposition of a new tracking device on nurses without negotiating with the union.
If the employer fails to bargain with the union in good faith or intentionally attempts to undermine the union by union busting tactics, there may be a violation.

Challenging violations

Violations such as these can be challenged by the union by filing an unfair labor practice (ULP) “charge” against the employer with the NLRB. The board will assign an agent to investigate the charge by interviewing the employees and/or witnesses involved and reviewing relevant documents. The board will also investigate the charge by meeting with management to get their version of the matter. Employee statements are not shared with the employer by the NLRB agent unless the matter proceeds to a formal hearing. The regional office then reviews what the agent’s investigation has found, and determines whether there is reason to believe that the NLRA has been violated. If the regional office finds that in fact there was a violation of the law, it will issue a “formal complaint” against the employer based on the union’s initial charge. Basically the regional office has found “probable cause” that a violation has occurred and the NLRB attorney then becomes the advocate for the union in prosecuting the case.

Formal complaints will then proceed to a formal hearing or trial conducted by an administrative law judge who will make a final ruling on the matter and has power to provide a remedy and assign penalties. However, most formal complaints are settled between the parties with the NLRB again acting on behalf of the union, before they get to a formal hearing or trial. Often however, these settlements are not always as clear as the union wants, and all too often includes a statement of “non-admission” of guilt by the employer. Settlements like these occur because the NLRB is the moving party at this stage and has the power to mandate a resolution whether the union agrees or not.

The reality

While the NLRB has an important role to fill in labor relations, the recent trends are disturbing. The reality of the current NLRB and its enforcement of the NLRA are mixed at best. Some basic points to consider are:

1. The process is a very lengthy one which delays a resolution of the violation. In the meanwhile, the employee continues to suffer and the employer denies any wrong-doing. Time and resources are also squandered in the process.
2. The penalties, even for the most serious violations, are often a “slap on the wrist” that employers are willing to accept as a perverse price of doing business. For instance, many official NLRB remedies amount to nothing more than an “official posting” in the workplace listing violations of law that the employer claims it did not do and won’t do again! If there is any monetary remedy involved, the employer often recognizes that such penalties are minimal and will factor these into its plan if its over-all goal is to destroy the working of an effective union by intimidating employees into silence and non-involvement.
3. The NLRB more and more often “defers to arbitration” violations of law. This forces the union to grieve the matter and take it through the arbitration process, before the NLRB acts on the issue. The NLRB has therefore created a recent history of excuses why not to enforce the law by these procedural practices. Cynicism and delays abound, in effect denying workers true access to the NLRA.
4. If the NLRB does issue a formal complaint and pursue a case, it seeks a settlement with the employer based on what it believes is fair, leaving the worker and the union little recourse. These settlements, as stated above, are usually watered down and may be more pragmatic than practical.
5. The NLRB also may dismiss the charge filed by the Union out of hand. In the process the NLRB may offer a face saver for the union by having it withdraw the charge, but the impact is the same. The union has the right to appeal the dismissal to the NLRB in Washington, which in turn usually rubber stamps the Regional Office’s dismissal.
6. And then there is the so-called “merit dismissals” that the NLRB uses to “exercise discretion to decline to prosecute meritorious cases where the public cost would outweigh the public benefit.” (from a memo of the NLRB Associate General Counsel to all Regional Directors). This means the NLRB reserves the right to dismiss a case that has merit – denoting that the law was violated by the employer as the union charged – but that they do not choose to pursue the matter because of "budgetary constraints"!

In many cases, the best that can be expected from filing a charge with the NLRB may be sending a signal to the employer to stop its illegal activity and the potential damaging media that impacts negatively on the employer’s image.

The current NLRB’s direction

The NLRB is charged with upholding and protecting American workers in their jobs by enforcing the provisions of the NLRA. But recently, the board has become more of an advocate for the employer, hurting and undermining worker rights and basic legal protections. Even management consultants that boast of their "union avoidance" programs (Adams, Nash, Haskell & Sheridan of Kentucky) recently stated that "the board lately has been giving incredibly management-favorable decisions."

The board has been deliberately under-funded by Congress in recent years, with an $8.7 million shortfall in 2004. Therefore, as the case load increases, the NLRB has fewer staff, time and funds devoted to investigations, trials, and preparations for representation elections. The Bush appointments being made to the board have become more and more conservative and anti-worker in tone. The balance that was intended to be struck between employee rights and employer rights has tilted dramatically towards the employer.

Consider these recent NLRB actions:

• The board is making it harder for workers to form a union by attacking card check recognition.
• The board last year modified how Weingarten rights (the right to representation in disciplinary investigations) applies, denying them in non-union settings.
• The board withdrew NLRA coverage and protections for a whole class of workers (graduate student employees) at private universities.
• The board has weakened the NLRA by limiting its remedies.
• The board has sided with the chamber of commerce in basically agreeing that state (California) taxpayer dollars can be used by employers to fight unionization.
• The board has been reversing in recent years many decisions made by the Clinton NLRB, to the loss of the worker.

Conclusion

While the Board remains an integral part of the American labor movement utilized by workers and their unions to continue to enforce the NLRA, there is little confidence and no illusions that workers’ interests will be upheld solely through this process. Consequently, unions are being forced to be creative and seek alternative ways to achieve the correct and appropriate remedy to violations of law. The use of the NLRB and the filing of unfair labor practice charges are therefore most effective, even with the limited remedies they are likely to achieve, when it is a part of a larger strategic plan. Workers and the union are ill-advised to rely on the NLRB alone to remedy work place problems and violations of the NLRA.

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