NLRB Builds On Job-Killing Micro-Union Decision
By Fred Wszolek
The same National Labor Relations Board (NLRB or Board) that brought you micro-unions is issuing decision after decision, which while not necessarily fully precedent-setting is moving Board law in such a way as to undermine the legitimate rights of employees and employers under the National Labor Relations Act (NLRA or Act). Last week’s decisions provided two good examples.
In Wynn Las Vegas, the Board reversed a career administrative law judge (ALJ) and found that the NLRA trumps the discovery and witness protection rules of a state labor commission. According to the Board, it was a violation of the Act for the employer to ask his employee questions about the testimony the employee intended to give at the upcoming state labor commission hearing. The employee’s identity was disclosed to the employer pursuant to the commission’s pre-hearing rules. The ALJ properly relied on this fact and on long-standing NLRB law which as a matter of comity gives effect to another agency’s rules and interpretations of the law it is charged with administering. Think about it, under this decision an employer may commit an unfair labor practice if in preparation for a civil judicial trial it interviews an employee who has been identified as a prospective witness by fellow plaintiff-employees who are suing the employer for, let’s say, work-related discrimination.
In Sodexo America, the Board continues to stretch law to an untenable extreme in order to limit the ability of employers to restrict off-duty employee access to the interior of the employer’s premises. Thirty-five years ago, in Tri-County Medical Center, the NLRB held that an employer may restrict such access provided the employer’s no access rule applies to off-duty employees seeking “access for any purpose and not just to those engaged in union activity.”
The Board declared unlawful a hospital regulation that prohibited off-duty employees from coming into the hospital unless it was to visit patients, seek medical treatment or for “hospital related business.” According to the Board, the exception “for hospital related business” amounted to the employer “telling its employees you may not enter the premises after your shift except when we say you can.” Sounds fully consistent with Tri-County. The hospital was not discriminating against off-duty employees engaged in union activities. Not so for the Obama Board which is deliberating misreading the Tri-County decision to give off-duty employees access to the interior of their employers’ premises to engage in union organizing and other concerted activities.
Acting General Counsel Lafe Solomon out did himself. He also wanted the NLRB to find the rule unlawful because it permitted off-duty employees access to visit patients or to seek medical treatment.
Well, the good news perhaps is that the facts of this case did not allow the Board to grant union organizers access to the employer’s premises before an election. That could be coming down the pike at some future date. A few years ago, a New York University law professor suggested that such access could legally be required under certain circumstances.
Sufficed to say, Obama’s labor board continues its work in favor of Big Labor bosses and against small business owners.