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Rethinking the National Labor Relations Board

The Senate is making much needed progress toward filling the vacancies at the five-member National Labor Relations Board, an agency tasked with protecting worker rights and balancing the interests of employers and unions in labor disputes. It is imperative to make the NLRB full-strength in order to roll back many of the union-biased and job-killing decisions handed down during the Obama administration.

Confirming new members to the Board is important because a new, more balanced approach at the agency will bring back sorely missed certainty to private-sector labor relations. But to bring fairness and balance to labor disputes for the long-term, it is time for Congress to think big and consider eliminating the NLRB.

It is a well-known secret that the NLRB has operated, for decades, as a partisan agency with precedent flip-flopping depending on which party holds the White House. But the Obama-era Board took this known partisan behavior to new heights. During the Obama era, the NLRB overturned over 4,000 years of precedent, which led many to consider this the most partisan NLRB in history.

Such biased and political decisions made by the Obama NLRB highlights the need for reform. In a recent report I make the argument for getting rid of the five-member Board:

  1. The NLRB no long operates as intended. It was supposed to act as a neutral arbiter representing the public interest in labor disputes. For the past eight years, the Board has acted as the litigation arm for Big Labor.
  2. Due to how the Board is structured, precedent flip-flops regularly that causes immense uncertainty. This happens because the White House controls the majority at the Board.
  3. The Board is doing less work than ever. From 1980 to 2016, the Board’s caseload fell by 58 percent.
  4. Eliminating the Board would increase consistency in decision making. Without the Board, private-sector labor disputes would go straight to federal courts. Unlike NLRB members, federal judges serve life-time appointments and are far less likely to come from the ranks of labor unions or employer-side law firms. This would depoliticize decisions in labor disputes and bring about more consistent and fair decisions while cutting down the flip-flopping of Board precedent.
  5. Eliminating the Board would hasten the resolution of labor disputes. As I’ve written previously, “the NLRB and its members are an arbitrary interference to expedient due process and the rule of law.”

A recent U.S. Court of Appeals for the D.C. Circuit decision involving the NLRB illustrates, and reinforces, my arguments for the need for eliminating the agency.

Here is the background of Fred Meyer Stores v NLRB from Law 360:

The dispute arose from an incident that occurred at a Portland, Oregon, Fred Meyer location on Oct. 15, 2009, when eight union representatives arrived at the store and allegedly refused to leave. A store manager called the police, who asked the employees to leave and arrested two of them. The police also arrested the union’s local president when he arrived at the store later.

In April 2015, the NLRB ruled that Fred Meyer Stores had committed several unfair labor practices, including refusing to let United Food and Commercial Workers (UFCW) union reps into the stores premises and making disparaging comments about the union, and ordered the store to make whole the union officials who were arrested for any costs they incurred.

In a scathing opinion, on August 1, 2017, the D.C. Circuit overturned the NLRB’s decision that had ruled the store had violated the National Labor Relations Act during the skirmish.

The court pointed out that Fred Meyer Stores and the UFCW union had a collective bargaining agreement in place that detailed how and when union reps may enter store premises and visit with employees, which the UFCW did not follow. “Where the individuals arrested had broken with prior practice and then failed to obey the officers’ commands despite repeated opportunities to comply and avoid arrest — we can hardly say the arrests amounted to a violation on the part of Fred Meyer,” the court wrote.

The court goes on to hammer the Board for not even being able to get the facts of the case right. “Having carefully examined both the Board’s findings and its reasoning, we conclude the Board’s opinion is more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding entirely the need for reasoned decisionmaking. The Board totally ignores facts in the record and misconstrues the findings of the ALJ.”

Further, the opinion declared the “Board behaved in an arbitrary and capricious manner by failing to engage in reasoned decisionmaking.” 

To sum up the actions of the NLRB, the court wrote, “In short, the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.”

This kind of a decision encapsulates what the NLRB has become, a highly partisan agency that does more harm than good. In this case, the agency totally ignored the facts, failed to use reason in coming to its decision and blatantly favored the union over the employer. Again, it is time for Congress to consider eliminating the NLRB.

My most recent Web Memo, “Rethinking the National Labor Relations Board: Free Market Reforms to Better Serve the Needs of American Workers,” is part of CEI’s Shrinking Government Bureaucracy publications series.