NLRB Remedies in Peril

Commentary

Alexis Lyman

Schmidt Labor Research Center
MSLRHR '12

One important piece of legislation to watch right now is Senate Bill 1523 (S. 1523 (2011)). This bill is the companion to H.R. 2587 which passed the House in September. The language of S. 1523 is identical to H.R. 2587. The preface of the Senate bill reads “to prohibit the National Labor Relations Board (Board) from ordering any employer to close, relocate, or transfer employment under any circumstance.” With the prohibition applicable to all circumstances, this bill significantly weakens, if not removes, the Board’s means of remedying unfair labor practices that may arise during contract negotiations or during the term of the collective bargaining agreements. To me, this seems a slippery slope.

By eliminating remedies available to right unfair labor practices, these bills turn the Board into a figurehead with no power. Section 10(c) of the National Labor Relations Act (NLRA) states that when the Board has determined an unfair labor practice exists that the “Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice and to take such affirmative action including reinstatement of employees with or without back pay.” These bills would remove the ability of the Board to issue a cease and desist order and to take affirmative action. Basically, these pieces of legislation amount to allowing the Board to only give violators a slap on the wrist and nothing more.

Section 1 of the NLRA espouses the findings and policies behind the enactment of the NLRA. The findings address the inequality of bargaining power between employees and employers. In addition, one purpose of the NLRA was to encourage friendly resolution of industrial disputes. H.R. 2587 and S. 1523 seen to have forgotten about Section 1 since these two bills will result in inequality between employees and employers by stripping the Board of the ability to enforce adherence to the NLRA mandates by employers. Therefore, these bills signal to Corporations that there will be no negative repercussions for acting in violation of the NLRA.

The exact language of the S. 1523 (2011) is as follows:

 “Sec. 2 Authority of the NLRB.

Section 10(c) of the National Labor Relations Act (29 U.S.C. 160) is amended by inserting before the period at the end of the following:  ‘:Provided further, That the Board shall have no power to order an employer (or seek an order against an employer) to restore or reinstate any work, product, production line, or equipment, to rescind any relocation, transfer, subcontracting, outsourcing, or other change regarding the location, entity, or employer who shall be engaged in production or other business operations, or to require any employer to make an initial or additional investment at a particular plant, facility, or location’. “