NLRB Union Protests Board Chair and GC

Darrell VanDeusen
Darrell VanDeusen

The National Labor Relations Board, we are told, is supposed to be the neutral government agency that addresses workplace issues between unions and employers.   And I saw a pink unicorn on the way to work this morning.   It is not unusual to hear employers sometimes suggest they are skeptical of the Board’s supposed “neutral” stance.  A number of decisions coming from the NLRB during the Obama presidency could be characterized as exceptionally more “union friendly” than “employer friendly.”  Some of those decisions reversed decades of NLRB precedent.  As someone who represents employers, that’s the way it goes for me and my clients.

But in two-party government, the pendulum swings both ways.  It is true that the NLRB under the Trump administration has already taken some steps to modify some of the Obama era Board decisions, just as the Obama Board did with respect to Bush era decisions.

Last week, for example, it was reported that NLRB Chair John Ring told an audience at the American Bar Association’s labor and employment law conference that the Board will address and revamp aspects of the union election process.   The Obama Board had changed the rules in 2014, creating what some referred to as the “quickie election” process.  Unions viewed this rule as a good way to stop employers from slowing down the election process and denying employees a chance to vote for a union as soon as possible.  Employers, on the other hand, viewed this rule as a way to deny them the opportunity to present legitimate concerns and legal issues to the Board and have those concerns resolved before an election is held.  Both views have some merit, but as someone who has had to work with those election rules, I assure you that some revamping is warranted.

Meanwhile, recall that leaders at the NLRB are also “management.”  And that’s where this story takes an unusual turn.  At that same ABA meeting, members of the union that represents the rank and file employees at the NLRB (the “NLRB Professional Association”) protested and handed out leaflets outside the conference.  The union claims that the Board may make more cuts to pay and benefits despite having a budget surplus at the end of the fiscal year.  The union also claims that the Board terminated two long-standing collective bargaining contracts for most of its staff in order to renegotiate the terms.  The union staged a similar protest in New York last February.

Chairman Robb has indeed indicated an intent to review and revise the NLRB’s processes to bring them into line with the OMB’s vision of slimming down the federal government by consolidating, minimizing, and eliminating certain programs and agencies.

Maybe the union’s position on that front is understandable — it sounds like employees are concerned about their jobs and that’s a fair concern.  But the harder part to swallow is that the union’s protests are aimed at Chairman Ring and General Counsel Robb’s efforts “to reverse the direction of federal labor policy . . .”  These employees basically are saying that they do not like the position that the Trump NLRB is taking and they want to stand up and apply pressure to get the Board to stop doing so.

True, this is not the first agency where some employees have expressed concern or disagreement with the current administration’s views.  But the leaflets handed out by the protestors said that “since their appointment, General Counsel Robb and Chairman Ring have engaged in a systematic attack on the employees” and “the agency as a whole.”

With all due respect to those views, this is the agency that is supposed to NOT be taking sides.  There was of course no similar “protest” when the Board took a big swing on approach under the prior administration.  The public criticism of Board leadership by Board employees serves only to further undermine the confidence that some employers (no need to tell me that unions have no confidence in the current Board; I know that) have in dealing with the agency whose job it is enforcing workplace rights fairly and in accordance with existing law and position of the agency.

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