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Large employers file suit to invalidate the NLRA and NLRB

It’s no secret that NLRB General Counsel Jennifer Abruzzo is aggressively leading the Board’s charge to strengthen unions and stimulate organizing through rule-making and union-friendly case decisions. 


Here are three quick examples…


1)    Under the Board’s Cemex decision, evidence of a card-authorization majority requires the company to recognize a union without an election unless the company quickly files a RM election petition with the Board.  And if the company wins but commits a ULP in the run-up to the election, the Board may enter an order requiring recognition and bargaining as a remedy for the ULP.


2)    Facially neutral company policies may give rise to ULPs during the run-up to the election if an employee could reasonably believe a policy prevents protected activities under NLRA’s Section 7; and the Board may bypass an election and simply enter a bargaining order per Cemex (the Stericycle decision). 


3)     The “quickie election” rules are back, shrinking the run-up to election to as few as 24 days, giving very little time for companies to craft campaigns and respond to union claims. 


There are more examples of pro-union Board activity – and some are explored in other articles in this Resources section.


But some large employers, tired of the Board’s political oscillation between union-friendly and company-friendly approaches, are ready to knock out the entire foundation of American labor law by challenging the very constitutionality of the NLRA and NLRB.


Amazon, SpaceX, Trader Joe’s and Starbucks have filed legal actions, asking the courts to decide the legality of the NLRA and NLRB in response to ULPs filed by the Board against those companies.


The companies claim that the NLRA is unconstitutional, in part because it violates the separation of powers by exercising combined executive, judicial and legislative powers. 


It does seem odd that this 89-year-old act empowers one five-member Board to:   1) make rules; 2) act as prosecutors for potential violations of the rules; and 3) sit in judgment of whether the rules were broken.  That sounds a lot like legislative, executive and judicial powers – all under one agency. 


Regardless of feelings toward the NLRA and NLRB, it is scary to think of a world where these post-depression, Roosevelt-era laws are invalidated.  Welcome to the wild, wild west.


Employees, unions, and employers would be left to fend for themselves within the realm of the courts, where the wheels of justice grind incredibly slowly and with great financial costs for all involved.  Only the very wealthy and powerful can successfully navigate the courts and survive their costs and delays.  Decisions are often final after years – not in months, as with final and binding arbitration or ULP cases. 


And what would be the binding precedents, if any?  The English common law as adopted and refined in America?  Would prior NLRB decisions carry any precedential weight if the labor laws were invalidated?  Might NLRB cases still be relied upon as persuasive?


Nobody knows the answers to these questions. 


Strikes, lockouts, injunctions, failed negotiations and possibly violence would, in some cases, cripple interstate commerce and bankrupt companies, unions and employees alike. 


It would be a mess. 


At the present time, employers may feel encouraged to challenge the Act and the Board in hopes that a conservative Supreme Court will be sympathetic to limitations on agency powers.    


Clearly, the NLRA could use a congressional facelift that would be beneficial to all parties in labor relations.  The Act has had meaningful amendments only twice since its 1935 enactment.  But chances that Congress will enact bipartisan, beneficial changes in labor law are slim to none….and Slim passed away yesterday. 


Although the NLRA is far from perfect, the Board often resembles a mean old dog that has no teeth.  It cannot levy fines or monetary penalties, and is limited to make-whole remedies, injunctions, and notice-posting in cases of violations.  That said, the Board is aggressively looking to expand make-whole remedies for victims to compensate for collateral, predictable and foreseeable consequences of unfair labor practices. 


Maybe the courts can craft responses in litigation that will tweak and amend the Board’s powers for the better without throwing out the baby with the bath water, as they say.  Again, nobody knows. 


But as labor relations professionals, lets be careful what we ask for.  Sometimes the devil we know is a better partner than the devil we do not know. 


Let MARC professionals help you with a full range of labor and employee relations issues.  With a well-trained leadership team, you nip potential problems in the bud and have an engaged workforce.  The NLRA only becomes a problem when employers do not know how to lead fairly and consistently in compliance with labor laws.  See our Services page and reach out to see how we can help you as we have helped hundreds of companies throughout our history. 

Contact Us: 812-232-1990





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