Labor Relations Board Just Getting Started

Last month, IB urged businesses to track the decisions of Health and Human Services Secretary Kathleen Sebelius, who has enormous power to shape regulations associated with the Affordable Care Act.

While you’re keeping up with Sebelius, you might also pay close attention to the National Labor Relations Board. The NLRB was established under the National Labor Relations Act to protect employees from unfair management or union practices, but under President Obama, it has become a lightning rod for controversy. The chief criticism is that the NLRB has become biased in favor of “big labor,” essentially to fill the coffers of a key Democratic Party ally, which in turn greases the Dems with campaign cash.

The board has made headlines with its decisions about employee use of social media, and its challenge of Boeing’s decision to build a non-union assembly plant in South Carolina. More recently, it has ignored legal precedent established by the Supreme Court’s 1988 Beck decision, under which workers are – make that were – allowed to withhold the portion of their dues that unions spend on political activity, and it has issued a ruling that forces companies to subsidize unions that go on strike against them, which circumvents rules established in the 1962 Bethlehem Steel case. Expect legal challenges to both rulings.

Another criticism is that three of the NLRB members with ties to labor were recess-appointed to one-year terms, forgoing the scrutiny of a Senate confirmation. Those recess appointments were judged to be unconstitutional because Congress wasn’t technically in recess, but it’s still unclear how that impacts the NLRB’s actual rulings.

All this should get the attention of businesspeople, whether their employees are unionized or not. The NLRB’s recent social media decisions forbid employers from disciplining employees who criticize their supervisors on Facebook or Twitter, as long as the employees are engaged in protected concerted activity pertaining to working conditions. These rulings apply to every business, not just union shops.

The social media rules will keep coming and, frankly, some of them have more merit than the cavalier way the NLRB ignores legal precedent. Now that President Obama has been sworn in for a second term, expect the NLRB to be even more active in pleasing the President’s supporters in big labor, including his frequent overnight guest, Richard Trumka, president of the AFL-CIO.

Labor groups did more than anyone to re-elect President Obama, and he owes them. My advice to business owners is to watch the NLRB, and watch your back.