The Biden NLRB

When Republican NLRB Members Show Their True Colors

Andrew Strom

Andrew Strom has been a union lawyer for more than 25 years. He is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY. He is the author of Caught in a Vicious Cycle: A Weak Labor Movement Emboldens the Ruling Class, 16 U.St. Thomas L.J. 19 (2019); Boeing and the NLRB: A Sixty-Four Year-old Time Bomb Explodes, 68 National Lawyers Guild Review 109 (2011); and Rethinking the NLRB’s Approach to Union Recognition Agreements, 15 Berkeley J. Emp. &; Lab. L. 50 (1994), and has written for Dissent and Dollars and Sense. He also taught advanced legal writing at Fordham Law School. He received his J.D. magna cum laude from Harvard Law School. The views he expresses on this blog are his personal views, and should not be attributed to SEIU Local 32BJ.

Despite Justice Gorsuch’s pronouncement in Epic Systems Corp. v. Lewis that the National Labor Relations Act sets up a “careful regime” with “specific guidance” about the rules that govern organizing and collective bargaining, the fact is that the NLRA is written in broad strokes, and it has been left to case law to determine which actions by an employer “interfere” with the right to organize, or what constitutes bad-faith bargaining. At the margins, reasonable minds can differ about these issues. But once the National Labor Relations Board has determined that an employer has broken the law, all Board Members ought to at least try to devise a meaningful remedy for the violation. Yet, in recent years, Republican Board Members have shown that they have no interest in providing effective remedies for violations. Board Member Marvin Kaplan’s partial dissent in United Scrap Metal PA, LLC, illustrates this point.

United Scrap Metal is a pretty typical NLRB case. Workers at a recycling facility filed for a union election, and the employer responded by committing a predictable series of unfair labor practices — the company’s general manager confiscated union t-shirts and threw them away; the company promised workers raises if they would make the union go away; it interrogated workers about their views on the union; and then it let all the workers stop work for 30 minutes while an anti-union worker conveyed the company’s promise of benefits and asked workers to sign an anti-union petition. Despite the company’s efforts, the workers voted to unionize. The employer responded by reducing workers’ hours.

While the Board ordered a monetary remedy for the reduction in hours, in keeping with its longstanding practice, the only remedy it issued for the other illegal acts was a cease-and-desist order and a notice to workers that the company would not repeat the violations. There was evidence in the record that a large portion of the workforce cannot read any language. As a result, the Board ordered the company to read the remedial notice to the workers. In a development that should be shocking but isn’t (because this is what we expect from Republicans on the NLRB), Board Member Kaplan wrote that he would have denied this common sense remedy. Here’s his explanation:

[Member Kaplan] disagrees with the majority’s suggestion that, even absent egregious conduct, a notice reading remedy is appropriate solely because a large portion of the Respondent’s mostly Hispanic work force speak Spanish but cannot read in either Spanish or English. The Board has not commonly ordered the extraordinary remedy of notice reading solely on the basis of the affected employees’ literacy or lack thereof.

In other words, confronted with the fact that a large portion of the workforce will not be able to read a posted notice and that there is a simple solution that would make the notice comprehensible, Member Kaplan would prefer to leave the workers in the dark. What possible justification is there for his actions? At Kaplan’s confirmation hearing, he pledged to “fairly and faithfully enforce the National Labor Relations Act.” In United Scrap Metal, Member Kaplan agreed with his colleagues that the employer broke the law in its efforts to stop workers from unionizing. Since the earliest days of the Act, the Board has ordered employers to post remedial notices. It is debatable how much the notices accomplish, but the Board has never doubted that there is some value in wrongdoers providing some assurance to affected workers that they will respect the law. Recently, Board Member David Prouty has suggested that it is time to update the notice remedy by requiring a reading of the notice in every case. While it’s hard to argue that a mere physical posting of a notice is ever effective, there is at least a theoretical justification for not reading the notice where the workforce is highly literate. But refusing to order a reading of the notice where workers are illiterate amounts to a confession by Member Kaplan that he’s just not interested in enforcing the Act.

Remedies for NLRA violations are notoriously weak. The current Board took a modest step toward addressing one of these weaknesses in Thryv, Inc., where it held that when a worker is fired illegally, in addition to recovering backpay, the worker should also be made whole for any other “direct and forseeable pecuniary harm” that flows from the employer’s illegal act. In other words, if a worker has to run up credit card debt or incurs out-of-pocket medical expenses as a result of losing her job, the employer should have to pay for those harms. When the Board issued the Thryv decision, Member Kaplan predictably dissented. And if the Board strengthens remedies for an employer’s refusal to bargain, I’m sure Member Kaplan will dissent again. But Kaplan’s position in United Scrap Metal suggests that he actually wants Board remedies to be meaningless, and his critiques of his colleagues’ decisions should be viewed in that light.

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