The NLRB’s Reign of Terror: 2002-2007

Many say that the reign of the National Labor Relations Board's anti-worker majority was the worst in the agency's 72-year history, turning the NLRB into a virtual arm of the Chamber of Commerce. During its term, the Board turned its back on the founding purpose of the National Labor Relations Act as stated in the law's preamble — "encouraging" collective bargaining and "protecting" workers' organizing rights — by issuing a torrent of decisions allowing the intimidation, discrimination, and firing of workers and union members. Here is a sampling.

Weakened card check for union recognition. Workers gaining recognition through majority card check must now wait until workers who oppose a union (or those who chose not to sign a card) get a 45-day period following recognition by the employer to petition for a decertification election. Competing unions may also petition for an election. If the petitioner gains 30 percent support, a union election must be held — against the majority will of the workers who wanted a union.

Okayed card checks for union decertification. An employer was permitted to withdraw union recognition two years before the end of a five-year agreement after a slight majority of the workers used a card check procedure (signing a petition) to call for a decertification election. The employer's withdrawal of recognition was allowed to stand even though an election was never held. 

Eroded workers' freedom of association. An employer was permitted to have a "no-fraternization" policy that prohibited employees from socializing after working hours at locations away from the workplace even though the policy could have a chilling effect on workers' right of association. The wording of the policy was overly broad, stating that employees were not allowed to "fraternize on duty or off duty, date, or become overly friendly with the client's employees or with co-employees." However, the Board said the policy was permissable, arguing that the workers would likely interpret the fraternization rule as merely a ban on dating, and not a prohibition of the association among co-workers protected by labor law.

Granted employers wide berth to classify workers as supervisors. Ignoring the increased decision-making responsibilities taken on by professionals over the past 20 to 30 years, the Board permitted employers to deny union eligibility based on a simplistic dictionary definition of "supervisor." The ruling imperils union rights for millions of workers, especially in health care.

Denied union eligibility for non-traditional workers. In several rulings, the NLRB excluded thousands of workers in non-traditional jobs (graduate teaching assistants, newspaper carriers, disabled workers, among others) the right to union representation.

Called intimidating statements employer "free speech." In several cases, the Board ruled that intimidating statements of employers (we will stall contract negotiations if a union is elected, we will lose our only customer if a union is elected, union supporters at another hotel were fired after voting in a union, etc.) were acceptable, amounting to expressions of employer free speech.

Allowed firings based on unlawful surveillance. The Board said an employer's discharge of numerous employees was permissible even though the firings were based on information obtained through unlawful surveillance.

Permitted denial (or cutbacks) of lawful back pay awards. In several decisions, the Board used twisted logic to side with employers who denied, withheld, or reduced lawful back pay awards. In one case, it was okay to deny back pay because the workers did not get interim jobs quickly enough. In another, it was okay for an employer to withhold the full amount of back pay due workers who had been fired in 1995 for voting for a union. The Board said the award should be for 1995 only, and not 1995 to the present, because the workers may not have received future pay increases had they not been fired.