Previously in a post on The Hill’s Congress Blog, I noted that Congress intended the members of the National Labor Relations Board to be “impartial” and represent the public in labor disputes.
Unfortunately, since the National Labor Relations Act was enacted in 1935, the NLRB has transformed into a highly partisan federal agency. Currently, all five NLRB members come from management-side law firms or were union counsel (see member bios here).
The result: severe uncertainty in labor-management relations.
For example, the NLRB has recently ruled in a number of decisions that a company employee handbook cannot require its employees to be courteous to fellow employees, customers, or management. The Board has claimed that the employer rules of conduct, which ban disrespectful behavior, interfere with employees right to engage in protected concerted activity.
However, it is important to note that these decisions have come from three-member NLRB panels composed of a majority of Democrat nominees that were former union-side lawyers.
In a recent NLRB decision, decided by a three-member panel with a majority of Republican/management-side appointees, the Board came to the conclusion that employer rules prohibiting employee insubordination or displaying a negative attitude toward customers are okay.
This holding seems to be in direct conflict with several other NLRB decisions issued by panel majorities composed of Democrat appointees. This zig-zag course is nearly impossible to reconcile, and, given the random assignments of the make up of the panels, employers should continue to be very careful in publishing and enforcing work rules that could reasonably seen as interfering with employee rights.
Also, as I concluded in my Hill post, the NLRB should be abolished:
For decades, the NLRB has been transformed into the epitome of all that is wrong with Washington D.C.: A wasteful highly partisan agency that does more harm than good.
Why should the public pay $283 million in tax dollars for an agency harboring alleged criminals that inflames labor strife and confers benefit to a narrow, private interest?
We shouldn’t, the NLRB and its members are an arbitrary interference to expedient due process and the rule of law.
Simply abolish the board then allow the 40 NLRB administrative law judges to continue hearing administrative cases and have the appropriate district court take appeals. These judges have some semblance of impartiality, serve long terms and are not as likely to seek future private-sector employment. Removing the redundant, partisan NLRB members will bring back some certainty to labor-management relations.