What You Don’t Know about the NLRB Could Hurt You and Your Employees

It is safe to say that relatively few employers and even fewer employees can accurately identify the National Labor Relations Board (NLRB) and describe its role. Yet this five-member panel is about to transform the nature of the workplace. Here are seven things employers and employees need to know about the NLRB. 1. The NRLB consists of five people whose decisions have the effect of federal law. The Board's rulings come in the form of decisions about unfair labor practices filed by employers or by unions. Because the rulings involve interpretations of the National Labor Relations Act (NLRA), they do not need Congressional approval to become the law of the land. While the Board cannot change the provisions of the NLRA, it can change how the law is interpreted and administered. Its rulings may be challenged in federal appeals court. 2. Board decisions affect all covered employees, not just those who belong to unions. With some exceptions (e.g., government workers, railway and airline workers) the NLRA covers unionized and non-unionized workplaces in the private and non-profit sectors with one or more employees. Thus Board rulings affect the rights of non-unionized employees and employers. 3. The Board is a highly politicized body. Over the years the NLRB has become an increasingly politicized body whose members' decisions reflect their political party affiliations. Rulings made by a Democrat majority typically favor unions, while those made by a Republican majority tend to favor management. 4. Once President Obama's three Board nominees are confirmed by the Senate, the NRLB will have a Democrat majority. The new Board Chair, Wilma Liebman, is a Democrat, as are two of the three individuals nominated by President Obama to join the Board. Ms. Liebman is on record (through her testimony before Congress as well as in her written dissents to Board rulings) as advocating significant changes that diminish current employer rights and increase unions' rights in the workplace. (See specific examples in #7 below.) 5. The NLRB regularly reverses previous Board decisions. Unlike courts of law, the Board does not treat previous decisions as precedent-setting. In fact, it reverses rulings of previous Boards with some regularity. Further, Board decisions are not subject to the debate, hearings, and media attention that accompany much federal legislation. NLRB decisions fly under most employers' radar. 6. U.S. labor law changes with each new or reversed Board decision. Because Board decisions have the effect of law, the law changes with each reversal. In addition, a decision in one case changes the law for all covered workplaces. Unless employers realize this fact and track NLRB decisions closely, they easily and unwittingly may violate federal law. 7. The new NLRB Chair has been very specific about what she wants the new Board to change. Some of Board Chair Liebman's desired changes include de-emphasizing employers' rights such as free speech, establishment of work rules, and access to employees; providing enhanced rights for temporary and contingent workers; enabling supervisors to join unions; broadening the definition of "protected activity;" allowing unions electronic access to employees (e.g., via employers' e-mail systems); and requiring employers to provide more extensive financial and operational information to unions. The bottom line: you ignore NLRB rulings at your peril. While even some management attorneys acknowledge that Board decisions made recently, especially during the Bush years, went too far in favoring employers, statements by Chair Liebman indicate her intention to push the pendulum to the other extreme. Are you prepared for the upcoming wild ride? To learn more about the National Labor Relations Board and its rulings, visit the agency's web site at www.nlrb.gov. For suggestions about what you can do to legally and ethically mitigate some of the anticipated changes, please see our article "Seven Tips to Prepare for the New NLRB."