A Glimpse Through the Looking-Glass

By September 19, 2012Labor Unions

Last week, arguments were made in the appeal of the U.S. District Court decision in NAM v. NLRB with respect to the notice posting requirement. You may recall, the District Court Judge ruled the NLRB had the authority to require all employers to post a notice in their workplaces despite no clear statutory language indicating as much and use an employers’ failure to post as evidence of an anti-union bias.

The NAM argued the National Labor Relations Act is clear, the legislative history of the Act bears out, and the case history supports our position. Yet, the Board insists the opposite – such is the tug-of-war we face with regulatory agencies recently, but during the arguments the lawyer representing the Board made two points I thought worthy of discussion.

During questioning from the three-judge panel, the Board’s attorney revealed what we have long suspected, but had been unable to confirm publicly until now. When asked whether the Board believes it has the power to compel all employers to do something, the answer was yes. Perhaps hinting at a concern about the implications of allowing the Board to proceed with regulatory actions not clearly articulated in the Act, the Board attorney was asked, what then is the Board prohibited from doing? What are the limits to the Board’s power? Answer given: none.

In another round of questioning from the panel, the Board asserted that it believes even absent the notice-posting regulation currently in dispute, over six million employers are violating workers’ rights every day because there may be employees who may or may not know their rights under the National Labor Relations Act. If this accurately reflects the attitude of the NLRB, then I believe it demonstrates undeserved hostility toward employers and a presumption of guilt that should concern all Americans.

I believe the absurd posture taken by the Board under questioning from the DC Circuit Court of Appeals reveals why we have had such controversial decisions and actions emanating from it over the past two years. Whether it’s a company deciding where it should locate its business and whom it should hire through complaints like the one lodged against The Boeing Company, shrinking bargaining unit size through a decision on Specialty Healthcare, shortening the length of time employees have to decide on joining a union through the ambush election rule, or requiring all employers to post a notice in their workplace through phantom authority concocted from nothing. This Board has run amok.

Joe Trauger is vice president of human resources policy, National Association of Manufacturers.

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