The NLRB's Expanding Agenda

by J. Wilson Eaton III, Esq.

A.        Overview of the NLRB’s Procedures and Jurisdiction and a Word on the Expanding Agenda.

            To those unfamiliar with the laws concerning collective bargaining in the United States, the information contained in this paper concerning proposed revisions to the National Labor Relations Board’s representation election procedures may seem designed to unfairly restrict employers’ ability to oppose labor organizations, and inexplicably to “stack the deck” in favor of labor organizations.   Surely, to create such an un-level playing field must be beyond the Board’s power, or violate the public policy of the National Labor Relations Act?
Unfortunately, the likely answer is in the negative.  The Board is given broad powers by the National Labor Relations Act, to encourage the practice and procedure of collective bargaining.  Sections 1 - 6 of the Act provide these broad powers and read, in pertinent part, as follows:

Sec. 1.  The denial by employers of the right of employees to organize and the refusal by employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent or the necessary effect of burdening or obstructing commerce … .  The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees. 

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce, … by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection … .

Section 3.  There is hereby created a board, to be known as the “National Labor Relations Board” …

Section 6.  The Board shall have the authority … to make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act … .

            While the proposed regulations do benefit unions, the Board likely will argue that the regulations comply with the basic purpose of the Act – to encourage collective bargaining.  The Board has periodically reviewed and revised its procedures in representation cases to carry out its duties under NLRA. Since the NLRA was enacted in 1935, the Board has amended its representation case rules at least three dozen times, often in substantial ways. The Board claims that its most recent proposed reforms are merely an effort to improve its service to the public.
While unions may have the advantage of favorable rules, employers will still win their fair share of elections.  This is not 1935, and most employees understand they do not need a union to provide basic fairness and a voice at their worksite.  Nevertheless, an employer must become familiar with the proposed changes in the election process, to ensure that it can adequately convey its message to employees during a representation election campaign. 

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