Is the NLRB a Dysfunctional Union Advocate?

Written by Robert G. Brody and Abby M. Warren on March 19, 2013

According to a staff report from the Oversight and Government Reform Committee (“Committee”) entitled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” the National Labor Relations Board (“Board”) has a pro-union bias.

The Committee is a U.S. House of Representatives Committee and it is Congress’ chief investigative and oversight committee.  The Committee’s responsibilities include review and study of the organization and operation of Federal agencies, including the Board.

The report begins “[u]nfortunately, under the Obama Administration, the NLRB appears to be sacrificing fairness to job creators in order to promote pro-union policies. To make matters worse, its leadership disregarded ethics and internal rules along the way.”  The Committee concluded the Board has far overreached its statutory authority and Board documents show the Board staff appears to “enjoy the thrill of gamesmanship in bringing a complaint against a major employer.”

The report provides a rare glimpse into the internal communications of the Board that show a systemic pro-union bias.  The report includes examples of these internal pro-union communications:

  • The NLRB, under the current Administration, appears to have turned into a voice for unions instead of a neutral arbiter of labor disputes. One NLRB supervisory attorney encouraged a list-serve of her colleagues to prepare for a work-training event by reading a pro-union book described as “daring” and “sure to be controversial” in labor relations. The attorney emphasized to her colleagues that the book “proposes arguments that Unions can use, particularly in the Courts, to make the [NLRA] more effective.” [emphasis added]. Another NLRB attorney complained that it was “[n]ot good for labor relations. . . .” when workers voted out the union at a South Carolina Boeing plant.

Statements showing pro-union bias in a specific case involving Boeing include:

  • The NLRB’s Associate General Counsel, Barry Kearney, praised an International Association of Machinists and Aerospace Workers (IAM) press release related to the Boeing case, stating, “[h]ooray for the red, white, and blue.”
  • Upon receiving Boeing’s Answer to the complaint, one NLRB attorney forwarded it to other NLRB attorneys and declared “[l]et the games begin” to which one attorney responded “finally…”
  • The NLRB’s head of public affairs, Nancy Cleeland, wrote to NLRB Acting General Counsel Lafe Solomon worried that she “made the Machinists [union] mad” and wanted to discuss it.
  • Mr. Solomon forwarded an email to then-NLRB Chairman Wilma Liebman and Ms. Cleeland expressing praise from a union attorney who “spoke about how impressed everyone is with all [Mr. Solomon] ha[s] been attempting to do and accomplishing.” This email was accompanied by a blog posting entitled, “Labor Board Grows a Set,” by the former head of ACORN, Wade Rathke.
  • The NLRB Acting General Counsel may have brought the complaint against Boeing to induce a settlement. A couple of months before the complaint was filed, IAM’s attorney called a NLRB attorney to say that his client wanted to know “what’s going on.” The attorney responded “[t]ell him Lafe [Solomon] is thinking about it. I had an unsatisfactory conversation with [Boeing’s attorney].” Then, when NLRB attorneys learned that Boeing’s motion to dismiss was denied, they proclaimed, “[b]ingo!” and “[h]ooray! Let the talks begin.”

The Report criticizes the Board’s notice posting rule, a rule that would require employers to post notices of employees’ rights under the National Labor Relations Act which has not yet been implemented, stating:

  • The NLRB’s notice posting rule demonstrates a pro-union bias. While the NLRB justified the rule on the basis that it “believes that many employees protected by the NLRA are unaware of their rights under the statute” and the notice will “better enable the exercise of [those] rights . . . .”, 67 percent of workers are unaware of their right under the NLRA to withhold mandatory union fees for political purposes. Yet, the NLRB appears unconcerned with workers’ rights to object to union political spending since that statutory right is not included in what must be posted.

The report also criticizes the Board’s quickie election rule, a rule that would dramatically shorten the time between the filing of a union-representation petition and a union election:

  • Demonstrating a cozy relationship between unions and the NLRB, one of the two NLRB members who voted to hastily issue the “quickie election” rule without a proper quorum was Craig Becker, a former union associate general counsel, who then returned to the nation’s largest federation of unions, the AFL-CIO, a mere five months after voting to issue the rule.

The report also shows the Board violated rules restricting ex-parte communications between the Office of General Counsel and members of the Board.  The Office of General Counsel acts as the prosecutor for unfair labor practices.  Because these cases may be appealed to the Board members who are the appellate judges, the Office of General Counsel is not allowed to communicate ex-parte (without the other party to the case) with Board members.  Evidence in the Boeing case shows this kind of prohibited communication happened frequently.  The report states that Lafe Solomon, Acting General Counsel, and then-Chairman of the Board Liebman exchanged over twenty emails regarding the Boeing case and many documents regarding the merits of the case, as well as met in-person to discuss the case.

The report even details how the Board tried to thwart the Committee’s investigation over a series of months!

This report reaffirms what has been obvious for a long time;  the Board is a pro-union entity where employers no longer get a fair shake.

Brody and Associates regularly advises its clients on union-related matters and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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Related Topics: Legal Updates, News, NLRB, Union Issues

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More