On June 18, 2012, the NLRB announced the “launch” of its webpage describing “Protected Concerted Activity”. As the Board notes in its press release, the right to engage in protected or lawful concerted activities is part of the original National Labor Relations Act of 1935 and has been part of NLRB case law for 77 years. Indeed, the Board’s first case decision, Pennsylvania Greyhound Lines, Inc., 1 NLRB 1, 47 (December 7, 1935), addresses concerted activity. Typical of the current NLRB, however, the press release bold faces the statute’s Section 7 right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” but does not bold the remainder of the statutory sentence: “and shall also have the right to refrain from any or all such activities.”
Why after 77 years, is the NLRB highlighting “protected concerted activity”? Is it because the agency’s caseload has diminished over the years, and it is desperate to ramp up activity to justify its ever increasing federal budget? Comparing fiscal year 2011 with fiscal year 2000, unfair labor practice charges filed dropped 24 percent and representation case petitions filed dropped 50 percent, yet the agency’s budget grew by 31 percent.
Or, is the current NLRB pushing internet outreach to help unions reverse their losses? Private sector union membership declined 23 percent from 2000 to 2011.
Perhaps the current NLRB is increasing its outreach for both of these reasons, as well as to do an end run around the pending litigation before the U.S. Circuit Courts of Appeals for the District of Columbia and the Fourth Circuits challenging the Board’s efforts to require employers to post notices of employee rights despite lack of statutory authority to do so.
The Board’s public outreach efforts have expanded over the years. For decades the NLRB has published brochures explaining the National Labor Relations Act and what the agency does to enforce statutory rights. The Board’s website has posted announcements and news releases since 1999. All Board decisions are published and available on the internet. Board Members, its General Counsel, and senior personnel speak at scores of public meetings each year, including trips to foreign countries (despite the fact that the statute applies only in U.S. states, the District of Columbia, and U.S. territories).
However, the Obama NLRB, led by its majority of former union attorneys, has significantly increased the agency’s public relations activities. In the Fall of 2009, the NLRB created a new Office of Public Affairs (OPA) for the announced purpose of increasing public engagement. From October 14, 2009, to date, the OPA has issued 227 News Releases in addition to scores of “announcements,” other publications and web postings. Of the 227 releases, 95 concern agency institutional matters, 118 report favorable outcomes for unions, and only 14 outcomes favoring employers or employees opposed to unionization.
The new Board webpage highlights recent “Protected Concerted Activity cases, identifying the employer and Board action taken. It does not highlight any union violations of the NLRA. This one-sided effort – like the Board’s press office’s news release program – complements the Obama Department of Labor’s tidal wave of pro-union public outreach under the banner “Plan, Protect, Prevent” and the AFL-CIO website’s mapping of employer citations for a variety of workplace law violations.
The NLRB made clear its purpose in its press release announcing the new webpage – “Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.” And current NLRB Chairman Pearce, a former union-side attorney, revealed the bottom line – ”Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.” So, if “organized” labor can’t increase its numbers by itself, the National LABOR Relations Board will do it for the union bosses. Quite apart from the concern for adjudicatory neutrality, the NLRB has demonstrated that, despite deliberate Congressional silence – in this case, regarding notice posting of rights to organize – an independent agency can do an end run and through administrative action accomplish what Congress has refused to do.
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