Labor Board Stretches to Blur Line Between Management Rights and Protected Activity and Then Orders a “Perp Walk”
In a case decided on August 11, the National Labor Relations Board affirmed an Administrative Law Judge’s determination that an employer, the publisher of the Santa Barbara News-Press, committed numerous violations of the National Labor Relations Act. That was not remarkable. Coercive interrogations about union activity, surveillance of union activities, requiring the removal of union buttons and signs and terminating a supervisor for refusing to commit unfair labor practices clearly violate the Act and have done so for over half a century.
What was remarkable is that the Board decided an issue that was not required for the holding and, instead, appears to have gone out of its way unnecessarily to broadly define activity protected by the Act.
The case involved news reporters. The publisher of the newspaper issued several directives. The first limited the coverage of the arrest and sentencing of the paper’s editorial page editor. The second prohibited reporters from including the home addresses of public figures (in this case, Rob Lowe) in news stories. Finally, the publisher limited what information about the paper could be disseminated by its reporters to other news media. The edicts resulted in a discharge, numerous resignations, a campaign to cause the cancellation of subscriptions, union organizing and, ultimately, an election which was won by the union.
The Board, in affirming the ALJ, held that the publisher’s editorial controls and edicts impacted the journalistic integrity of the reporters. As a consequence, the Board said, the publisher’s conduct interfered with the protected rights of the reporters. What moves the decision out of the outrageous category is that the actions taken by the publisher were so mixed with other unfair labor practices that it is hard to isolate what could otherwise have been a clear encroachment by the Board on management prerogatives. Despite the Board’s protestations to the contrary, the fact remains that on some level it blurred the line between management’s rights to run its business and employee protected activity. Whether the Board will use this case as support in the future for further limiting management authority is for another day.
A couple of other things make this case worthy of comment. First, the publisher’s stated reasons for the actions against the employees were numerous and, to the ALJ, that multiplicity smacked of pretext. Had the publisher limited its reason for action to the management prerogative argument, the case would not have been so easy for the Board. As in civil rights litigation, cases can be lost because an early statement about why a certain action was taken turns out to be incorrect and pretextual. The lesson is that employers must be smart from the beginning and not rely on after-the-fact-lawyer-spin to win cases. The reason for the action must be formulated with the law and available proofs considered before the action is taken.
The second reason for reporting on this case is the Board’s amendment to the remedy ordered by the ALJ. The amendment says a lot about the current Board’s bias against employers.
In addition to the expected cease and desist, reinstatement, rescission of negative performance evaluations and make whole remedies, the ALJ ordered, again expectedly, that the employer must post a notice stating the rights of employees to engage in union activity, pledging no further violations of the Act and listing the actions it will take to remedy the prior unlawful conduct. The actions the ALJ required from the employer were severe and extensive, directly touching virtually every employee. There is no question that the entire workforce would know what and how the NLRB had concluded their employer violated their rights. No one working for the employer would have any question. No one working for the employer would be left in the dark. Nothing more was required. Nothing more was needed.
The Board, however, apparently thought there was something more that was needed – groveling.
The Board ordered that the remedy be amended to require a senior member of management to read the Board’s complete Order to the assembled employees or to stand next to a Board agent as the Order is read. It is the Board’s version of a “perp walk.”
Since this kind of communication was not necessary in this case to communicate with few employees of a small employer, the only motive for the Board’s action could be the demeaning of the employer.
Unfortunately, I suspect there will be more of this kind of anti-management retaliatory conduct by the Board in the future, as it continues to increase the ante for employers who are charged with violations of the Act. By raising the remedial stakes to an unconscionable level, does the Board feel that it will be able to coerce employers into settling cases of questionable merit or inconsequence, thereby aiding unions in their organizing efforts? If this is the motive, the Board is actively trying to subvert the law and process in favor of organized labor.