NLRB responds to CEI on government ‘encouraging’ unionization

The National Labor Relations Board recently issued a rulemaking that included a direct rebuttal to an argument made by the Competitive Enterprise Institute regarding the National Labor Relations Act itself. CEI had challenged the claim by the board and by unions that the NLRA makes it federal policy to promote unionization. The NLRA felt compelled to try to refute the argument.

Spoiler: The NLRB didn’t do a very good job refuting it.

CEI’s argument is that the NLRA only encourages collective bargaining in cases when the economy faces serious obstructions that only collective bargaining can resolve and otherwise leaves it up to the individual worker whether they wish to join a union. This is borne out by numerous comments the author of the law, the late Sen. Robert Wagner (D-NY), made during Senate debate over it in 1935.

CEI made the claim in a letter commenting on a rulemaking for the “joint employer” statute. The board responded in a footnote to the rule, specifically footnote #301.

The NLRB does not claim that the sections of the NLRA cited by CEI are misinterpreted or taken out of context. That’s a pretty big concession. Rather, it argues that CEI’s position is refuted in other sections of the law: “We find support for the broader view of the Act’s purposes in Sec. 7, 8, and 9 of the Act.” Let’s address these claims one-by-one.

Section 7 of the NLRA covers “Rights of Employees.” The board argues the mandate to encourage collective bargaining can be found in the part of Section 7 that describes employee rights to, quoting from the Act, “form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing.”

Nowhere in Section 7 of the law is the word “encourage” or any variation of it or synonym for it used to describe the government’s responsibility in the matter. Instead, Section 7 explicitly says that employees, “…shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization.” (Emphasis added.) Thus, the law recognizes that while collective bargaining contracts can have provisions that coerce workers into joining (state laws vary on this), it is not automatic and must be explicitly stated in the contract. Absent that, workers have an absolute “right to refrain” from joining.

Section 8 of the NLRA covers “Unfair Labor Practices.” The board argues the mandate to encourage collective bargaining can be found in part of the section making it “an unfair labor practice for an employer to refuse to bargain collectively with representatives designated or selected by employees.”

This makes no sense. In such a hypothetical “refuse to bargain” scenario, the workers have already organized and petitioned their employer for recognition. The government’s role is to uphold the rights that the workers have already sought to exercise. No encouragement of any kind is necessary because the workers are acting of their own accord.

It is an unfair labor practice under Section 8 for an employer to “encourage or discourage membership in any labor organization,” according to the Act. This may be what the NLRB was alluding to by invoking Section 8 in its response.

It does not follow, however, that the government must encourage collective bargaining to counter any hypothetical discouraging efforts by management. The government, through the NLRB, can simply sanction employers when they cross the line. Again, nowhere is the word “encourage” or any variation of it or synonym for it used to describe the government’s responsibility in the matter.

Section 9 of the NLRA covers “Representatives and Elections.” The NLRB argues that this section directs the Board “to conduct representation elections upon the filing of a petition supported by a substantial number of employees who wish to be represented for the purposes of collective bargaining.”

This argument suffers the same logical flaw as their argument for Section 8. In such cases the workers have already engaged in their rights by seeking recognition for their union and therefore any encouragement by the government is irrelevant.

Reading between the lines, the board appears to be arguing that it must encourage collective bargaining in order to ensure that workers invoke their rights under the NLRA. That, absent such encouragement, workers wouldn’t bother to form unions.

But, again, the law’s own author was on record numerous times saying that it was solely the worker’s choice to form or not form a union. Wagner said that it was a falsehood that the NLRA encouraged workers to do this. The text of the law bears this out.