Remember in the movie “Jaws” when Roy Schneider was throwing chum over the side of the “Orca” and the shark suddenly appeared? The shark was much larger than anyone on the boat had expected. Thus, the famous movie line “You’re going to need a bigger boat!”
When it comes to the refining and petrochemical industries and the National Labor Relations Board (NLRB), we do need a bigger boat.
The NLRB is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. This five-member Board is appointed by the president and approved by Congress. In the past, it was not uncommon for there to be less than five members on the Board.
Earlier this year, the Supreme Court of the United States (SCOTUS) rendered a decision in the NLRB v. Noel Canning. This decision overturned the “recess appointments” that President Obama made to the NLRB and other agencies. The SCOTUS decision created a (mostly) new NLRB and threw many of the decisions made by the “recess appointment board” into flux.
The new members of the NLRB are three Democrats and two Republicans. The Democrats are the chairman, the former general counsel of the NLRB, and the former general counsel for the AFL-CIO. Two of the three Democrats have been employed in the NLRB for most of their professional careers.
Is this new Board active? Yes! Is this new Board activist? Perhaps.
Recent rulings have shown that this Board will rarely side with the employer. For example, the determination by the NLRB General Counsel that McDonald’s franchises are joint employers could have repercussions to any industry that has contractors. The Browning-Ferris case on joint employers has yet to be determined, but the NLRB is showing its hand, and it is holding a Happy Meal.
Earlier this summer, Roger King, an attorney with Jones Day testified before a U.S. House Subcommittee on Health, Employment, Labor and Pensions on what employers should expect from this Board. He stated “In recent months, the board has expanded the application of its protected concerted activity doctrine to the extent that it is now examining virtually every paragraph, sentence and even punctuation mark in employer policies and procedures. This exceedingly expansive application of the NLRA has created substantial ambiguity, confusion and a general lack of clarity in the jurisprudence in this area.”
One also must remember that the NLRB is more than just the Board. There are 26 regional offices with regional directors. These regional directors handle more of the day-to-day issues with employers, unions, and the like. However, sometimes a regional director will do something newsworthy. This is the case with the Northwestern University football team, the Wildcats. Back in January, there were news reports that members of the team were being enticed to form a union. While providing fodder for jokes, it turned very serious when the NLRB regional director ruled on behalf of the team to form a union. Since then the university administration, the NCAA, and a host of lawyers have gotten involved in this issue. The Wildcats had a secret ballot vote in April, but that vote is sealed. A decision should come down sometime before the end of the year.
My advice to any employer, regardless of industry, is like AFPM; remain cognizant of what this NLRB is doing. NLRB members have made no attempt to hide their bias; and in fact, a majority of the Board has extensive pro-union records.
Much like the shark in “Jaws,” this new Board is out there and it is fiercer than past Boards. They are watching the minimum wage protests. They are watching organizing campaigns across the country. And when they decide to attack, we will need a bigger boat.