“It’s not a stretch to say that the National Labor Relations Board (NLRB) probably didn’t receive a whole lot of holiday cards from employers this last Christmas. However, employers aren’t the only ones who have taken some umbrage with the Board.  Recently, this discontent has spread to a handful of administrative law judges (ALJs), who have expressed their frustration with the Board’s decision-making and liberties taken by the NLRB’s General Counsel (GC).  

The NLRB’s ALJs decide unfair labor practice complaints.  Initially, an ALJ will issue a decision.  Then – if desired – the employer can appeal to the NLRB in Washington, D.C.  For its part, the Board GC serves as the prosecutorial arm of the agency.  So, for those keeping score at home, the NLRB investigates allegations in unfair labor practice charges; the NLRB prosecutes the case; the NLRB (practically) serves as the trial court; and, the NLRB serves as the initial appellate court.  As the cases below show, the trial court is getting a bit testy.  

The trend started late last summer in BCI Coca-Cola Bottling Company.  There, the employer laid off eight employees, and the union claimed that the layoffs were discriminatory. The employer requested deferral because the issue implicated provisions in the parties’ collective bargaining agreement.  The NLRB’s GC, however, decided to issue a complaint on the claim.  The ALJ, William Kocol, dismissed the case.  On appeal, the Board reversed and remanded the case to the ALJ, with instructions. 

The ALJ did not take kindly to the reversal.  In dismissing the complaint – again – the ALJ chastised the Board for ignoring well-established precedent, and accused the Board and the GC of lacking “intellectual integrity.” 

A few weeks later, in Interbake Foods, LLC, the NLRB issued a complaint against an employer for discharging employees allegedly because of their union activities, as well as for making unlawful statements about unionizing.  After a hearing, ALJ Paul Buxbaum dismissed the complaint.  The ALJ chastised the GC for focusing too narrowly on the fact that the employer opposed the union’s organizing efforts (which an employer is allowed to do).  According to the ALJ: 

[C]ounsel for the General Counsel in this case tends to see the people involved as stick figures, the issues as always being drawn in stark shades of black and white and the plot line as being a melodrama of the type once associated with mustachioed mortgage holders and destitute grieving widows.  Both life and labor law are far more complicated and nuanced.

A month after that, in Cooper River Grill, an employer was the target of several unfair labor practice allegations, including an allegation that a manager had threatened to discharge employees for their union activities.  ALJ Keltner Locke dismissed several of the allegations against the employer, including the alleged threat.  The ALJ concluded that the “threat” actually involved a violation of the company’s no-smoking policy.  Indeed, the employee’s testimony “did not indicate that there was any mention of union activities or that she had recently engaged in any union activities.  Nothing about the context would associate the words with the Union or protected activities.” 

ALJ Locke didn’t stop there, however.  He remarked that, here “[m]y concern is about fairness….  It is about a common sense notion of truth-in-labeling.  A can marked ‘beans’ should have at least one bean in it somewhere.  Likewise, when a complaint labels a supervisor’s remark as a ‘threat to discharge employees for union activities,’ the remark should have the word ‘union’ in it somewhere or at least include a reasonably recognizable reference to union activities.” 

More recently, last October in Purple Communications, Inc., ALJ Paul Bogas refused to find unlawful a policy which prohibited the use of the employer’s equipment – including computers, internet and email – for anything other than business purposes.  The ALJ noted that to find a violation of the law based on the GC’s allegation would require the ALJ to overturn existing precedent, Register Guard, which the ALJ refused to do.  While ALJ Bogas concluded that there were several other violations by the employer, he did not take the GC’s bait to rule that a policy compliant with existing law was somehow unlawful.  

While there’s no telling whether this discontent will continue, it will be interesting to see how the Board responds to such criticisms from its own ALJ’s.  Of course, it will be even more interesting to see how courts view the schism if the cases wind their way up that far.  On the frontlines, while the NLRB now has a new GC – Richard Griffin – he may very well continue the very active prosecutorial role that his predecessor, Lafe Solomon, undertook while he occupied the post, which means the issues ALJ’s may be likely to address in the future could very well continue to press the legal envelope.

Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
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