The NLRB as an Überagency for the Evolving Workplace

TitleThe NLRB as an Überagency for the Evolving Workplace
Publication TypeJournal Article
Year of Publication2015
AuthorsGreen, Michael Z.
JournalEmory Law Journal
Volume64
Date Published2015///
Keywordsdiscrimination, labor, National Labor Relations Act, National Labor Relations Board, NLRB, workers’ rights, workplace, workplace disputes
Abstract

In addressing legal issues regarding the relationships between employers and employees, one must navigate a complex maze of rights and remedies that govern the workplace. This essay details several recent and important workplace disputes addressed by the National Labor Relations Board (NLRB) pursuant to Section 7 of the National Labor Relations Act (NLRA). Section 7 protects a worker’s right to pursue an activity for mutual aid or protection regarding wages, hours, and other terms and conditions of employment. The NLRB, a unique agency with its ultimate decisions determined by five members who primarily establish rules through adjudication rather than rulemaking, has been asked to offer an initial answer to many pressing workplace questions arising from technological and legal advances.Some of the critical issues that have been or will be addressed by the NLRB include employee use of social media, use of electronic mail communications, immigrant workers’ rights and remedies, enforcement of class arbitration waivers in collective wage and hour claims, organizing of college football players, protected worker speech versus employer rights and obligations to limit certain speech, the scope of coverage under joint employer/independent contractor arrangements, and the intersection of labor law with anti-discrimination law concerns in the workplace. The NLRB is encountering these matters at a unique time concerning the number of NLRB members appointed by the President with advice-and-consent approval by the Senate. While in the midst of considering the ramifications of a pending Supreme Court decision regarding challenges to the scope of the President’s recess appointment of certain NLRB members, the President and the Senate agreed in August 2013 to a political compromise allowing the NLRB to operate with all five members approved and in place for the first time in ten years. A full complement of NLRB members remains in place throughout 2015 and at the dawn of the NLRB’s eightieth anniversary. As a result of having this full complement of NLRB members, this Essay asserts that the NLRB has become the premier administrative agency for addressing workplace matters across a broad spectrum of employee-employer concerns. In this respect, the NLRB represents a super — or über — agency in pointing a spotlight on important workplace issues that no other administrative agency could or should address. With the five appointed members’ outstanding expertise in labor law as well as in broader workplace concerns under employment discrimination and employment law, these NLRB decision-makers offer an unusual level of knowledge to operate on the front line in adjudicating perplexing issues that continue to evolve in the workplace.

URLhttp://ssrn.com/abstract=2580786