The NLRB has signaled it may be on the brink of making major changes in labor relation policy while ignoring the constraints of the Administrative Procedures Act. The APA requires federal agencies to adhere to certain standards when issuing new regulations including cost benefit analysis, provisions for public notice and the opportunity for public comment before implementation. The process the Board has used to decide on so called “mini-unions” in Specialty Healthcare and Rehabilitation Center of Mobile is almost as alarming as the probable decision itself – a decision that would overturn decades of precedent without Board consensus or meaningful public debate in response to a case where neither party requested the probable resolution. Even more troubling, the anticipated “mini-union” decision would upend the long-standing belief that both workers and business are best served by the largest appropriate bargaining units. These actions by the Becker Board leave all to wonder what other established labor precedents would soon be reversed by fiat only to keep unions in business. In other news, the NLRB recently ruled that an employer was in violation of the Act in terminating an employee who secretly taped a meeting with his supervisor. In Stephens Media, LLC d/b/a Hawaii Tribune-Herald -and- Hawaii Newspaper Guild Local 39117 the Board ruled that this secret taping was protected concerted activity because the employee made the recording to protect his Weingarten rights. The taping was also ruled protected because the employee discussed his intent to tape the meeting with his co-workers before the meeting started therefore (using Becker Board logic) the employee was not acting solely for his own benefit but to safeguard the Weingarten rights of his co-workers by simply bragging to them about it. The Board has also expanded its most recent social media decisions to now include Twitter posts. The board asserts that the Thomson Reuters news division violated a reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the company’s Twitter service, “One way to make this the best place to work is to deal honestly with Guild members.” The Board appears to be following a mandate to establish all forms of social media as safe havens for any sort of anti-employer or union-promulgating activity. In breaking Board news, on April 21 the Board issued a complaint against Boeing for deciding to transfer a second production line from its unionized facility in Washington State to a non-unionized facility in South Carolina. The company has invested millions in the South Carolina facility and hired over 1000 workers there. However, the Board could rule that the company must keep a second line running in its Seattle area facility that the Machinists have taken out on strike three times in the past six years. In recent negotiations, Boeing had asked the AIM for a no strike clause and longer contract terms to keep the second line in Washington. In response the union demanded the company agree to keep all future plane production in the Puget Sound area and agree to remain neutral in all future AIM organizing efforts against Boeing nationwide. Boeing is acutely critical of the Board’s complaint, especially as it was issued a full 17 months after the company first announced its intent to move the second line to South Carolina. And in this issue’s last piece of NLRB news, Board Chair Leibman appeared before the House Committee on Appropriations to request increased funding for the Board testifying that after years of decline the number of Board cases is now creeping steadily upward. (Perhaps because the Board is passing out union hugging decisions like Halloween candy?) Finally, while many programs are being cut or reduced under the last minute budget agreement that averted a federal government shut down earlier this month, the measure allocates at least $21,332,000 in new money to the Secretary of Labor “for the purposes of program evaluation, initiatives related to the identification and prevention of worker misclassification, and other worker protection activities.” Bottom line – giving Hilde Solis an extra $21M to spend this year just can’t be good for business.
