Thursday, December 10, 2015

Report: Study on the NLRB’s Attack on Business

The Workforce Freedom Initiative (WFI), a division of the US Chamber of Commerce, has issued a report entitled Theater of the Absurd: The NLRB Takes on the Employee Handbook.

In its introduction, lamenting the relatively recent changes (since about 2009) to the climate and rulings of the NLRB, the report states:

"Unfortunately, in recent years the NLRB has changed. Rather than serving as an impartial referee, it has become dominated by a decidedly pro-union majority. These activist Board members have disregarded the overarching objectives of the NLRA and disrupted the careful balance that the Board has traditionally sought. Instead, this majority, along with the Board’s appointed General Counsel, have pursued a one-sided agenda at the expense of employers and workers."

Bravo! I would go further to say (and I have; most recently here and here) that the current Administration, as well as other regulatory bodies (that really have no business doing so), are actively promoting unionization of U.S. businesses.

The report details many decisions of the NLRB that view common employee handbook rules and policies to be a violation of employees’ Section 7 rights (Section 7 of the National Labor Relations Act protects all employees’ rights in regard to unionization and engaging in protected, concerted activity designed to improve wages, hours and other conditions of employment).

"By interpreting the NLRA’s Section 7 protections so broadly, the NLRB has increasingly interfered with employers’ ability to manage their own workplaces, often to the detriment of employees themselves. The result has become a theater of the absurd, in which Board decisions issued by bureaucrats specializing in increasingly abstract theories of labor law run counter to the real-world experiences and necessities of the modern workplace. As a result, the Board’s irrational interpretations of the law have created a serious headache for employers and employees looking for stability and common sense in labor relations."

There have even been decisions of the Board that could put a business right in the cross hairs of other federal agencies:

"Not only does the NLRB’s interpretation of Section 7 rights frustrate employers seeking to manage their workplaces, but in some instances the Board’s views run counter to guidance provided by other enforcement agencies, such as the Equal Employment Opportunity Commission (EEOC). That agency addresses issues like workplace harassment and explicitly states that "an anti-harassment policy and complaint procedure should contain, at a minimum … [a]ssurance that the employer will protect the confidentiality of harassment complaints to the extent possible," among other things.

Moreover, employers are required to prevent a hostile work environment, which includes conduct "that a reasonable person would consider intimidating, hostile, or abusive," such as making threats or intimidating co-workers. Yet the NLRB has ruled that policies ensuring confidentiality for employees in workplace investigations and prohibiting harassment somehow interfere with Section 7 rights. To say the least, the Board’s actions have put businesses in what baseball players call a "pickle," where a base runner is stranded between two bases and very likely to be tagged out by the opposing team. In this case, it’s two powerful government agencies doing the tagging."

Many business people may wonder why the NLRB is focusing so much hostile attention on them. I don’t really think it’s much of a secret. The Chamber poses this suggestion:

"…the Board is using its decisions to assist with future union organizing drives. By charging an otherwise law-abiding employer with unfair labor practices related to the employee handbook, the Board can establish a history of supposed "anti-union animus." In the event of an organizing campaign down the road, the NLRB could use that purported animus to impose restrictions on employer conduct or perhaps even overturn the results of a representation election if the union loses. Whatever the explanation, the Board’s handbook decisions defy common sense and leave employers exasperated."

It is clear to me and many others, that the current Board and this Administration, is willing to do whatever is in their power (or whatever they think they can make their power) to promote unions over business. At the risk of being repetitious, it just doesn’t make sense to me to attack and hamstring the very entities that create jobs and sustain our economy.

This is a particularly interesting and enlightening report; especially if you’re not familiar with the workings and recent moves made by the NLRB that affect your business, unionized or not. While we must all abide by laws and regulations (even those we don’t like), we can also work to change those laws and regulations that make no sense and actually inhibit our ability to run our own businesses. If, like many others, you don’t think these actions by the NLRB and the current Administration are beneficial to you, your business or your employees, contact your elected officials. Work to get them changed or repealed. Just as employees have the right to come together for their own betterment, business has that right also – although it’s becoming harder and harder to exercise that right. The only way things will change is if all of us, in our own capacity, let these bodies know our stance on the issues.

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