Obama Labor Board Still Giving Union Bosses More Gifts To Place Under Their Tree

By Fred Wszolek

The National Labor Relations Board (NLRB) recently announced that it was putting three more gifts for union bosses under the Big Labor Christmas tree.

In the face of 50 years of Board precedent that has consistently held that tug boat mates and pilots are supervisors who cannot be represented by a union, a NLRB majority ruled that the mates and pilots working for Brusco Tug and Barge, Inc. were employees entitled to union representation.  The Board claimed its decision had short legs that this employer simply did not satisfy its burden of proof and that other tug boat employers may.  This reminds us of the representation made by the Board in Specialty Healthcare that its holding had limited reach.  That this NLRB was changing long-standing Board law is evident from the fact that it misread the standards for supervisory status established in the Board decision, Oakwood Healthcare, and it ignored uncontroverted evidence presented by the employer to achieve its result.  For example, the employer’s captain testified that the mate has to “run the boat completely” — give orders and see that they are carried out — when the captain is asleep.  This fact which establishes supervisory status under Oakwood and is consistent throughout the industry was dismissed by Obama’s Labor Board, which declared that the captain is only a “shout away.”

In another case the Board continued to chip away at what is “concerted activity” under the National Labor Relations Act.  The Act protects workers who engage in union and “other concerted activity” for their mutual aid and protection.  “Concerted” means that the employee is not acting alone or for the employee’s sole benefit, but is acting with or on behalf of other employees.  By broadening the scope of what is concerted activity the NLRB can regulate the non-union workplace, find the non-union employer guilty of unfair labor practices and, once having maligned the employer’s good name with its employees, transform the workplace into one ripe for union organizing.  In this case, Hoodview Vending Co., the Board incredibly found that an employee’s discussion of job security with another employee, even if out of a purely personal concern with no intent to induce group action, is “inherently” concerted.  In this case, an employee, LaDonna George, engaged in unexcused absenteeism for which she might be disciplined.  She saw an ad on the Internet posted by the employer and told another employee that the employer was going to fire someone.  This other employee went to the employer because he was afraid that he was going to be fired.  The employer fired George for spreading workplace rumors that someone was going to be fired, which threatened to interrupt production and impact morale.  The NLRB, however, found the discharge unlawful because it was in response to concerted activity, declared it an unfair labor practice and ordered that the employee be reinstated with back-pay.

Finally, the third gift to Big Labor by the Obama Labor Board is coal to the American worker who cooperates with his employer in the employer’s investigation of workplace misconduct.  The NLRB reversed 30 years of Board law according to which an employer does not have to provide the union with witness statements obtained during an employer’s investigation of employee misconduct.  This long-standing NLRB precedent was consistent with U.S. Supreme Court precedent, which has recognized the dangers of releasing witness statements before trial and it achieved important labor policies: the protection of the integrity of the arbitration process (during which the union may seek witness statements secured by the employer to challenge the results of the investigation), the protection of employee witnesses who participate in workplace investigations from coercion and intimidation, the encouragement given employees if their statement will remain confidential to cooperate in workplace investigations of misconduct, and finally, enabling employers to conduct effective investigations of possible workplace misconduct.

To the Board majority all of this is far less important than strengthening the hand of union bosses.

Consequently, the Board ruled that if an employer does not tell an employee-witness that his or her statement will be kept confidential, the employer upon request of the union must produce the statement even if the employee gave the statement believing it would be kept confidential.  The NLRB’s decision is inconsistent with Board’s own procedures in unfair labor practice cases according to which the respondent, usually an employer, is not entitled to witness statements prior to the time the witness testifies.  The reason for this Board rule is to avoid any threat that the witness will be intimidated or harassed.

Each of the above cases is stridently anti-employer and pro-union, but in a short-sighted way.  They give reason to employers who can do so to open non-union operations elsewhere or to move their operations overseas.  This is the byproduct of more giveaways by Obama’s Labor Board to the union bosses who bankrolled his campaign.

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