Not Going Gently: Rogue NLRB Lands One More Blow

For the first time in a decade, the National Labor Relations Board is composed of five legitimately appointed members. However, one of the last decisions handed down by the outgoing rogue NLRB members was as blatantly union-bias as it gets.

However, before getting into the facts of the NLRB decision in Community Options NY, it is important to note a few important tenets of U.S. labor law:

  • Under Section 7 of the National Labor Relations Act, employees have the right to form, join or assist labor unions but also the right to refrain from any or all of such activities
  • Section 8(c) of the Act, a union commits an unfair labor practice when it expresses views to employees that involve a l“threat of reprisal or force or promise of benefit”
  • In NLRB v. Tower Co., the U.S. Supreme Court declared the NLRB’s duty was to establish “the procedure and safeguards necessary to ensure the fair and free choice of bargaining representatives by employees.”

Lexology reports the facts of Community Options NY, Inc., 359 NLRB No. 165 (July 16, 2013):

In Community Options, the employees had filed for decertfication of their union representative.  While the petition was pending the union and employer reached a tentative collective bargaining agreement.  The agreement contained a union security clause requiring all employees to become and remain members of the union or be discharged. The employer notified the employees of the tentative agreement, including the existence of the union security clause.  The employees were concerned about this requirement.  During the ratification meeting the union promised to waive the first six months of dues to “offset the negative impact of the limited wage increases that had been negotiated.”  The employees ratified the contract and a little over two weeks later voted to retain the union in the decertification election. 

The employer filed objections, which were sustained by the Hearing Officer, who found that the union’s waiver of dues constituted a tangible benefit that likely had a coercive effect on the outcome of the election.  On appeal the Board reversed the Hearing Officer, concluding that no benefit was offered to employees.

The logic of the NLRB is, at best, disingenuous. Any reasonable person would agree that a union offering to suspend dues payments for six months is a tangible benefit, and even more obviously coercive because of the timing of the inducement corresponds with a union decertification election. The union obviously waived the dues to fend off the decertification election.

Allowing unions to confer direct benefits to employees while forbidding employers greatly tilts the playing field in labor’s favor. In addition, such unfair rules directly conflict with the above stated principles of labor law that promote free and fair elections in which unions, and employers alike, cannot interfere with an election in a coercive manner.

Even in the NLRB’s analysis of case the Board cites Mailing Services 293 NLRB 565, 565 (1989), “[a] union cannot make, or promise to make, a gift of tangible economic value as an inducement to win support in a representation election.”

So how could the Board infer that the union did not provide financial benefit to employees or use coercive measures to gain opposition to the decertification election?

According to the NLRB, “A waiver of union dues will constitute an objectionable financial benefit, however, only if employees already have an enforceable legal obligation to pay the dues.” The Board went on to argue since the contract did not require union dues payments until thirty days after the contract was ratified, the employees economic positions were not immediately enhanced so therefore waiving dues for six months did not constitute a tangible economic benefit.

Even better, the Board found that the waiver of dues was not coercive because “the Union rebutted that inference by explaining that the timing of the announcement was linked to the ratification vote, not the decertification election.”

In enacting the NLRA, Congress left the Board “with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”

After 78 years and absurdly biased decisions like Community Options becoming more common, it is about time Congress rethinks its vast delegation of power to the NLRB, which has abused the authority given it by the people’s representatives.