Conservative Media Mangle Memo To Attack The NLRB

››› ››› DAVID SHERE

Conservative media outlets are deriding a memo recently released by the National Labor Relations Board, claiming that it "shows that the board wants to give unions much greater power over employers and their investment and management decisions." In reality, the memo addresses a narrow portion of labor law that requires employers to bargain with unions if labor costs are a factor when businesses decide to relocate. The changes contemplated in the memo would simply "encourage the use of bargaining rather than after-the-fact assessment of whether bargaining might have been successful."

Conservative Media Use NLRB Memo To Allege "An Unprecedented Intrusion Into Boardrooms"

National Review: Memo Shows NLRB "Wants To Give Unions Much Greater Power Over Employers And Their Investment And Management Decisions." From from a post by Hans von Spakovsky and James Sherk on National Review's The Corner:

The National Labor Relations Board (NLRB) raised a lot of eyebrows by filing a complaint against Boeing for opening a new plant in a right-to-work state. But that action is just the beginning of the board's aggressive new pro-union agenda. An internal NLRB memorandum, dated May 10, shows that the board wants to give unions much greater power over employers and their investment and management decisions.

[...]

Specifically, the NLRB wants to force companies to provide detailed economic justifications (including underlying cost or benefit considerations) for relocation decisions to allow unions to bargain over them -- or lose the right to make those decisions without bargaining over them. It is a "heads I win, tails you lose" situation for unions. Either way, businesses would have to negotiate their investment plans with union bosses. In the concurrence that she wrote in the Embarq decision [NLRB chair Wilma] Liebman expressed her displeasure that "the law does not compel the production of" such information to unions.

[...]

The NRLB's goal is not just to prevent companies from investing in right-to-work states. The board apparently also wants to force employers to make unions "an equal partner in the running of the business enterprise," something the Supreme Court ruled in First National Maintenance Corp. v. NLRB is specifically not required by the NLRA. But the board wants business decisions made to benefit unions, not the shareholders, owners, and other employees of a business, or the overall economy. The Boeing charges are evidently just a first step toward that goal. [National Review Online, The Corner, 5/16/11]

WSJ Editorial: Rule Change "Would Be An Unprecedented Intrusion Into Boardrooms." From an editorial in the May 23 edition of The Wall Street Journal:

The Obama-era National Labor Relations Board has tilted so heavily toward union interests that companies might be forgiven for thinking the process is rigged against them. A recent missive from one of the agency's top lawyers shows why.

In a May 10 memo to regional staffers, Associate General Counsel Richard Siegel discusses a March case in which the NLRB sided with telecommunications company Embarq Corp. in a dispute over its decision to close a Las Vegas call center and open a bigger facility in Florida. The company refused to explain to its union the rationale for the move. In America, business decisions are made by owners or executives and are rarely subject to compulsory bargaining, while unions confine their concerns to working conditions, pay and benefits.

[...]

Ms. Liebman wants to force far more companies to consult unions when they want to relocate, because unions might theoretically be able to offer concessions to avert a move if they had more information. Never mind that such a rule change would be an unprecedented intrusion into boardrooms, or that unions might use collective bargaining to request reams of data, such as payrolls and tax returns, to increase their negotiating leverage. In a "future case," Ms. Liebman added, "I would be open to modifying" the rule.

[...]

As more private workers shun union membership, Big Labor wants government to rig the rules on its behalf. The current NLRB, the most politicized in memory, is obliging with an unprecedented attack on the free movement of business and capital in America. If it succeeds, the result will be a flight of jobs overseas, not more at home. The NLRB is controlled by President Obama's appointees, and the White House silence on their actions amounts to an endorsement. [The Wall Street Journal, 5/23/11]

Employers Currently Required To Bargain With Unions Over Relocation If Employees Could Concede Enough To Forestall Move

Daily Labor Report: Liebman Noted Existing Precedent Includes An "Anomaly" -- That NLRB Might Determine "In Hindsight" That Bargaining Should Have Occurred. From the Bureau of National Affairs publication Daily Labor Report:

In the March decision in Embarq Corp., 356 N.L.R.B. No. 125 (2011), the board members agreed that Dubuque Packing Co., 303 N.L.R.B. 386, 137 LRRM 1185 (1991), was a controlling precedent that required finding that even though labor costs were a factor in the company's decision, bargaining was not required because union concessions on labor costs could not have convinced Embarq to abandon its plan for changing call center operations.

Writing a separate concurring opinion, Liebman observed that "Because the relocation decision was not a mandatory subject of bargaining, it follows that the Respondent was not required to provide the Union with information related to the decision," but she called that result an "anomaly" that followed from Dubuque Packing.

"Providing requested information to the union is surely part of this desirable process," Liebman wrote, "because such information will often be necessary for the union to bargain intelligently," but she noted that existing board law did not support finding against an employer that refused to furnish the information if the NLRB ultimately determined that union concessions would have made no difference to the employer. The board might reach such a conclusion "in hindsight ... even where (as here) no bargaining ever occurred and the union had no opportunity to explore or influence the employer's decision," Liebman wrote. [Daily Labor Report, 5/11/11, subscription required]

Labor Relations Update: Liebman "Had Difficulty With The Fact That Under The Dubuque Test Relocation Is Only A Mandatory Subject" Of Bargaining If The Union Could Have Given Sufficient Concessions To Prevent It. From Michael Lebowich of Labor Relations Update, a website run by the labor-relations law firm Proskauer Rose:

Chairman Liebman concurred in the Board's ultimate decision that the employer, Embarq Corporation, did not violate the law by refusing to provide information about a planned relocation of its Las Vegas call center or bargaining over the ultimate decision itself. However, she used this case to illustrate that Dubuque Packing created what she believed to be an unhelpful "anomaly" relating to the union's request for detailed information about the relocation and the reasons for the move. Specifically, she had difficulty with the fact that under the Dubuque test a relocation decision is only a mandatory subject - - and, therefore, there is only an obligation to provide information to the Union - - if the Union could have given sufficient concessions to prevent the relocation. [LaborRelationsUpdate.com, 4/9/11]

Proposal Seeks To Clarify Rights And Responsibilities For Employers And Unions In Relocation Cases

Daily Labor Report: Leibman "Would Be Open To Considering" If The Board Should Mandate Employers Provide Requested Relocation Information "Whenever There Was A 'Reasonable Likelihood' That Labor-Cost Concessions Might Affect The Decision." From the Daily Labor Report:

On March 31, Liebman agreed with Board Members Craig Becker and Brian E. Hayes that a telephone service company was not required to bargain with an International Brotherhood of Electrical Workers local about a decision to close a Nevada call center and relocate its work to Florida because the union could not have offered labor-cost concessions that would have changed the company's decision.

But the NLRB chairman said she would be open to considering whether the board should require employers to provide incumbent unions with requested information about relocation decisions whenever there was a "reasonable likelihood" that labor-cost concessions might affect the decision. Siegel informed regional offices in Memorandum OM 11-58 that Acting General Counsel Lafe E. Solomon now wants to consider taking action on the issue. [Daily Labor Report, 5/11/11, subscription required]

Labor Relations Update: New Proposal Would, "In The Chairman's View, Eliminate 'After-The-Fact- Assessments Based On 'Guesswork.'" From former NLRB Board Member Ronald Meisburg of Labor Relations Report:

The Chairman suggests that a better approach would be for the company advise the union whether the relocation plan "turns on labor costs." If it does, then the employer would be obligated to provide the union with information regarding labor costs and "advise" whether it believes the union "could make concessions that could change [the employer's] decision." This would, in the Chairman's view, eliminate "after-the-fact" assessments based on "guesswork" which is unhelpful to either party. She indicated that she would be willing to revisit Dubuque Packing in a later appropriate case. [Labor Relations Update, 5/16/11]

NLRB Memo: Proposal Would Clarify Rights And Responsibilities For Employers And Unions In Relocation Cases. From the National Labor Relations Board Memorandum OM 11-58:

Chairman Liebman would consider modifying the Dubuque Packing framework by requiring employers to provide requested information about relocation decisions whenever there is a reasonable likelihood that labor-cost concessions might affect the decision. She posits that, if the employer provided the information and the union failed to offer concessions, the union would be precluded from arguing to the Board that it could have made concessions. If, on the other hand, the employer failed to provide such information where labor costs were a factor, it would be precluded from arguing that the union could not have made sufficient concessions. [NLRB.gov, 5/10/11]

Wash. Examiner: Memo "Leaked" By "Radical Labor Activists" On NLRB Shows Anti-Business Agenda

Wash. Examiner Editorial: "Leaked" NLRB Memo "Shows That The Board Seeks To Elevate Union Officials To Equal Partners With Executives" Of Businesses. From a Washington Examiner editorial:

Not only is the NLRB standing firm in its Boeing suit, but the leaked memo, which was obtained by the Heritage Foundation's Hans von Spakovsky and James Sherk, also shows that the board seeks to elevate union officials to equal partners with executives in corporate boardrooms of all unionized firms. [The Washington Examiner, 5/17/11]

Memo Was Made Publicly Available On The NLRB Website, Which Regularly Releases "Operations-Management Memos" -- Including 38 This Year. The National Labor Relations Board describes Operations-Management Memos as memorandums "issued to the field offices from the Division of Operations-Management of the General Counsel's Office in Washington to give direction in case handling matters." [NLRB.gov, accessed 5/19/11]

Wash. Examiner: Memo Shows "Radical Labor Advocates" That Are "On A Calculated Campaign" To Hurt Non-Union Businesses. From the Examiner editorial:

A memo leaked from the National Labor Relations Board makes clear that President Obama and the radical labor advocates he put on it are embarked on a calculated campaign to make unionized firms even harder to manage. The NLRB's recent suit against Boeing Aircraft Co. is merely the first step. [Washington Examiner, 5/17/11]

NLRB's Acting General Counsel -- Whose Office Issues Operations-Management Memos -- Is A 30-Year NLRB Employee Who Has Served Under Board Members Appointed By Republicans And Democrats. From NLRB.gov:

The General Counsel, appointed by the President to a 4-year term, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.

Lafe Solomon, a career NLRB attorney, was named Acting General Counsel by President Obama as of June 21, 2010. The Agency's top investigative and prosecutorial position, the General Counsel has supervisory authority over all Regional Offices and guides policy on issuing complaints, seeking injunctions, and enforcing the Board's decisions.

Mr. Solomon began his Agency career as a field examiner in Seattle in 1972. After taking a break to pursue a law degree, he returned as an attorney in the Office of Appeals. He transferred to the Appellate Court Branch in 1979. Two years later, he left the General Counsel side of the Agency to join the staff of former Board Member Don Zimmerman. He went on to work for another nine Board Members, including Donald Dotson, Robert Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman. [NLRB.gov, accessed 5/19/11, 5/19/11]

We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.