The Law Is No Obstacle for Obama's Labor Board

The law protects citizens from unscrupulous persons, including the arbitrary exercise of power by big government bureaucrats. Emphasizing the point, Thomas More says in a Man for All Seasons that he would give “the Devil benefit of law, for my own safety’s sake.”

Not so with the National Labor Relations Board (NLRB and Board). The government agency ignores the law and, as necessary, the Supreme Court, to satisfy union bosses. Two decisions issued at the end of September demonstrate the point.

In a case known as Massey Energy, which had been pending for eight years, the Board found the parent company liable for the unfair labor practices of a subsidiary based on theories that were never alleged or litigated by the general counsel. That’s right. No evidence or argument was offered in support of these theories before the administrative law judge. The NLRB simply reached back in time and found facts in the record it deemed sufficient to support the convenient theories, based on arguments never made to the judge. 

In dissent, Board member Brian Hayes hit the mark writing, “In their collective zeal to hold Massey liable – for the obvious reason that it is far more likely than the subsidiary [Mammoth] to have the funds to meet back pay obligations – the Acting General Counsel and my colleagues have trampled due process.”

And in Marriott International, the NLRB deliberately misconstrued long-standing Board law and ignored the Supreme Court to find Marriott guilty of an unfair labor practice. 

Thirty-five years ago, the NLRB held that an employer can prohibit off-duty employees from access to the interior of the employer’s premises provided the rule applies to employees seeking access “for any purpose and not just to those employees engaging in union activity.” The obvious intent of this language was to prohibit rules that discriminate solely against union activity, and with little exception it was so held for most of the last 30 years. Now, the Obama Board claims that this case requires that for an employer’s no access rule to be valid, it must prohibit all off-duty access for whatever reason.  

Marriott’s rule permitted employees to remain inside its premises for 15 minutes before and 15 minutes after their shift. It made the mistake of reasonably taking into consideration that “[o]ccasionally circumstances may arise” requiring the employee to return and with management’s prior approval they could do so. The circumstances could include unanticipated events such as retrieving a forgotten wallet or picking up an overlooked pay check. For the NLRB, however, the Marriott exception was not “narrow,” and it vested far too much discretion in the employer to decide “when and why” off-duty employees could have access to the facility. According to the Board, requiring the off-duty employee to disclose the reason why the employee was seeking access “would certainly chill” employees from engaging in union activity.  

In addition, deliberately misconstruing prior Board law, the Obama Labor Board ignored the instructions given it by the U.S. Supreme Court. The Supreme Court has ruled that the Board must give a reasoned explanation for its decisions and must accommodate the right to organize with private property rights “with as little destruction of one as is consistent with the maintenance of the other.” The NLRB has done neither.   

Instead of explaining its reasons for changing Board law, the government agency simply completely denied that it is making changes. And it makes no attempt to engage in an accommodation between the rights to organize and private property. Nowhere in its decision does the NLRB even mention Marriott’s property rights, and it dismisses as irrelevant the company’s concern that the rule is necessary to maintain order and limit liability risk. 

To tell all business owners in the United States that it is unlawful to ask off-duty employees why they want access to the employer's premises demonstrates just how out of balance this Board has become. But as long as Barack Obama is President of the United States, he will appoint extremists to the National Labor Relations Board. Business confidence will continue to erode, and the once-vibrant American economy will be replaced with a stagnant economy dominated by government bureaucrats.