Politics, The NLRB, And You
By David S Farkas “Legal research? What do you have to do that for? You’ve been practicing for years, shouldn’t you know this by now?”
There is no such thing as a legal practitioner who has not been faced with such a question over the course of his career. Indeed, the question makes sense. A bricklayer does not request payment for time expended in learning how to lay bricks, because it is assumed he has already learned the skills necessary to bill himself as a professional in the trade. Why then should an attorney be any different?
As a preliminary point, it must be emphasized that legal questions frequently involve novel or complex fact patterns, and the outcome of a case can and often does turn upon a solitary, innocuous looking fact. Thus, a good attorney will never assume that the law of one case will apply to another, however similar they may appear superficially.
However, an excellent article has recently appeared in one of the premier legal journals for labor lawyers that really addresses the question squarely. The article can be found in the current edition of The Labor Lawyer (under an editorial board that includes Professor Marley Weiss, under whom I studied in law school), where Mr. W.V. Bernie Siebert, a management attorney in Denver, Colorado, discusses a recent decision of the Board that he argues convincingly was based purely on political grounds.
The case, entitled MV Transportation, involved a company that assumed, or “succeeded” the operations of its predecessor, and continued the old company’s operation in a substantially similar manner. The successor employer met with the Union that represented the employees of the old employer, but filed a petition to decertify the Union after only a few bargaining sessions. The Regional Director refused to process the petition, holding that a 1999 decision of the Clinton Board called St. Elizabeth Manor required a successor employer to bargain with the incumbent union for a “reasonable period of time” before either withdrawing or filing of for de-certification. The Board however, in a 3-1 decision, overruled the Regional Director, noting that the decision of St. Elizabeth was an unwarranted, “abrupt departure” from Board precedent, and reinstated the old rule, holding that a successor employer need not bargain with the incumbent union if it doubts the Union continues to represent the majority of the employees.
In a sharply worded and well-argued essay, Siefert questions if the quick change in law represents “principled philosophical debate or merely partisan discourse?” Siefert answers his own question by charging that MV Transportation “may well demonstrate that politics can, and often do, predominate over reasoned legal analysis, notwithstanding the claim of lofty philosophical differences.” In fact, the author states unequivocally that “change in Board policy coinciding with each change in the White House has largely become accepted as a fact of life.”
The above example is merely one out of dozens of cases where decisions of the Board have been influenced by their political affiliation. While some observers might argue that all legal decisions are affected by politics, this is especially true regarding the NLRB. After all, the very statute empowering the Board, the National Labor Relations Act (NLRA) mandates that the sitting President select part of its members.
The upshot of this discussion is that the current state of labor law at any given time can never be defined with accuracy. A creature of motion, the NLRA is always in a state of flux, shifting and changing, chameleon-like, to meet the notions of the sitting Board. To a certain extent, the shifts in policy trickle down to decisions of Regional Directors as well. As such, legal research is required not only for complex matters, but even for relatively simple questions where the position of the Board may have changed. Think about it – would you show up to your child’s wedding in the same suit your mother or father wore to your wedding? Let’s hope not – and let’s hope we keep up to date on the NLRB trends as well.
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