The Nlrb as an Überagency for the Evolving Workplace

• Jurisdiction: United States,Federal
• Publication year: 2015
• Citation: Vol. 64 No. 0

The NLRB as an Überagency for the Evolving Workplace

Michael Z. Green

THE NLRB AS AN ÜBERAGENCY FOR THE EVOLVING WORKPLACE

Michael Z. Green^*

ABSTRACT

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This Essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker's right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rulemaking, has been asked to offer an initial answer to many pressing workplace questions arising from technological and legal advances.

Some of the critical issues that have been or will be addressed by the NLRB include employee use of social media, use of electronic mail communications, immigrant workers' rights and remedies, enforcement of class arbitration waivers in collective wage and hour claims, organizing of college football players, protected worker speech versus employer rights and obligations to

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limit certain speech, the scope of coverage under joint employer/independent contractor arrangements, and the intersection of labor law with antidiscrimination law concerns in the workplace. The NLRB is encountering these matters at a unique time concerning the number of NLRB members appointed by the President with advice-and-consent approval by the Senate. While in the midst of considering the ramifications of a pending Supreme Court decision regarding challenges to the scope of the President's recess appointment of certain NLRB members, the President and the Senate agreed in August 2013 to a political compromise allowing the NLRB to operate with all five members approved and in place for the first time in ten years. A full complement of NLRB members will remain in place throughout 2015, at the dawn of the NLRB's eightieth anniversary.

As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee-employer concerns. In this respect, the NLRB represents a super—or uber—agency that points a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members' outstanding expertise in labor law, as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decisionmakers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.

INTRODUCTION: EMPLOYING THE FULL COMPLEMENT OF NLRB EXPERTISE AS AN ÜBERAGENCY FOR TODAY'S WORKPLACE ...................... 1623

I. NLRB MEMBER EXPERTISE ON THE FRONT LINE: WORKPLACE KNOWLEDGE AND ADJUDICATION LIKE NO OTHER AGENCY .......... 1626
II. SECTION 7 PROTECTIONS AND NEW NLRB ENFORCEMENT AFTER TECHNOLOGICAL AND LEGAL ADVANCES IN THE WORKPLACE ....... 1629

A. Social Media: Costco & Triple-Play Sports ............................ 1631
B. Electronic Mail: Register-Guard & Purple Communications . 1633
C. Immigrant Workers: Mezonos & Flaum .................................. 1633
D. Class Arbitration Waivers: D.R. Horton & Murphy's Oil ...... 1634
E. College Football Unions: Northwestern University ................ 1636
F. Joint Employers/Independent Contractors: McDonalds ......... 1637
G. Workplace Speech Limits: Plaza Auto ..................................... 1639
H. Accommodating Employment Discrimination Law: Fresh & Easy ......................................................................................... 1640

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III. KEEPING THE NLRB FIVE TOGETHER FOR THESE CHANGING TIMES ................................................................................................ 1642

CONCLUSION ................................................................................................ 1645

We respond when parties fail to fulfill their bargaining obligations or when workers experience the personal devastation of layoffs, terminations or denial of employment as a result of unfair labor practices. We are the agency that puts people back to work and we get them paid for the wages they lost.¹ —Mark Gaston Pearce, Chairman, National Labor Relations Board.
[T]he [National Labor Relations] Act does not confer authority on the [National Labor Relations] Board to act as an "uberagency" without due regard for and proper accommodation of the enforcement processes established by these other laws and agencies² —Harry I. Johnson, III, Member, National Labor Relations Board.

INTRODUCTION: EMPLOYING THE FULL COMPLEMENT OF NLRB EXPERTISE AS AN ÜBERAGENCY FOR TODAY'S WORKPLACE

The introductory quotes from two of the current members of the National Labor Relations Board (NLRB or Board) highlight the important role that the NLRB plays in addressing key workplace concerns and how far the NLRB's powers may extend. The NLRB has five members, each appointed to five-year terms by the President with the advice and consent of the Senate. Professor Ronald Turner has recently explained the workings of the NLRB in a very succinct fashion:

As a matter of custom, and not law, no more than three of the five NLRB members may belong to the President's political party. Board members, performing a quasi-judicial function, consider and decide

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cases via a process of case-by-case adjudication. Unlike most agencies, the Board rarely resorts to substantive rulemaking. While the . . . Board [has] the authority to make rules and regulations, the United States Supreme Court has made clear that "the Board is not precluded from announcing new principles in an adjudicative proceeding and . . . the choice between rulemaking an₃d adjudication lies in the first instance within the Board's discretion."³

Due to technological advancements arising within this digital age and many creative responses aimed at either broadening or narrowing the scope of legal rights and remedies that workers possess, ongoing questions related to these matters have created complex issues for employers and employees. In enforcing the broad strictures of Section 7 of the National Labor Relations Act (NLRA)⁴ in both the union and nonunion workplace, the NLRB has been called upon to answer some of the most vexing questions in the emerging digital and legal workplace.⁵ This Essay asserts that the NLRB is strategically positioned to handle these questions better than any other agency. Its leadership from five dedicated members with significant expertise in all the various workplace laws, who are appointed by the President with the advice and consent of the Senate,⁶ helps the NLRB to successfully operate as an uberagency for today's evolving workplace.

Resort to Congress or the Supreme Court to address these challenging workplace matters in the digital age has represented an unsatisfactory option.⁷ Specifically, as antidiscrimination law arose in the workplace over the last fifty years, along with subsequent problems in proving employer liability in the courts and other substantial limitations including the lack of a strong

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enforcement agency, Congress has failed to make any systematic changes in how to address these complex issues for employers and employees.⁸ Nevertheless, the NLRB, and its protection of organized labor and concerted activity even in a nonunion workplace, has continued to offer a supplement to antidiscrimination laws for workers despite failed efforts to make additional legislative improvements.⁹

In Part I, this Essay describes the exceptional expertise of the current full complement of NLRB members in labor law, as well as employment and employment discrimination law.¹⁰ Part I also highlights how that expertise serves the workplace in a remarkable way by having such an extraordinary collection of individuals weigh in on the pressing labor and employment law issues of the day. Part II describes the broad scope of legal protections for employees that may be addressed by the NLRB and the number of growing issues that remain uncertain in the rapidly changing workplace.¹¹ While the

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Supreme Court may be hesitant to address the impact of growing technology in the workplace given its limited knowledge,¹² having a full complement of NLRB members represents an informed perspective on these issues given their familiarity with legal concerns of employers, employees, and unions. Part III argues for the continued employment of a full complement of the five members of the NLRB to address the pending workplace issues of the day. Further, the ability of the President to appoint five members with the advice-and-consent approval by the Senate provides the appropriate political balance to have truly thoughtful analysis on these issues. This Essay concludes that the quality of the opinions being authored by both majority and dissenting NLRB members who are now operating on the front line in addressing these matters is helping to identify important concerns that ultimate policymakers and other decisionmakers can consider as future workplace issues develop.

I. NLRB MEMBER EXPERTISE ON THE FRONT LINE: WORKPLACE KNOWLEDGE AND ADJUDICATION LIKE NO OTHER AGENCY

With all the pressing issues that the NLRB must address, one might ask whether the current Board, appointed by Democratic President Barack Obama, has the expertise to weigh in on these subjects. At the time of its creation by the NLRA in 1935, the makeup of the NLRB was expected to be "staffed solely by 'three impartial Government members.'"¹³ Historically, appointments to the Board had focused on seeking persons with...