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October 25, 2016

NLRB Chair: Board Gives Employee Voice in Workplace

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Mark Pearce ’75, chairman of the National Labor Relations Board, cited the development of the “modern worker” and the ambiguity of new technology to explain how the NLRB’s role has increased in the last few years at a lecture Monday evening.

“The average person commonly assumes that the workplace is where they have the same rights as they have under the constitution,” Pearce said. “The reality is that workers rights are statutory and emanate from a recognition of inequities that congress sought to address.”

The central role of the NLRB has been to enforce the National Labor Relations Act of 1935 — an act which guarantees employees a critical “seat at the table,” according to Pearce. “The act guarantees private sector workers the right to engage with each other to improve wages and other terms and conditions of employment,” he said. “It affords employers and employees certain protections.”

The NLRB has been taking an active role in labor regulations, Pearce said. He described the organization as an impartial forum that has just recently stepped “out of the attic and into the kitchen” to help the modern laborer.

Pearce described two types of modern workers who could benefit from the act, saying both “need our help” to have a “voice in the workplace.”

“We have the modern worker — those that are struggling to make ends meet — they often work in an environment that has little of their best interests at heart … knowing little about their rights,” he said. “Then there’s this other group of workers … who are a little bit more educated and self-assured … they may want to talk about things like salaries or maternity leave.”

Pearce said the main objective of the act is to determine whether an employee’s actions should be protected as concerted activity. He said determining concerted activity can become blurred when technology is involved in a workplace dispute.

“Facebook and other social media cases presented new issues for which the board has needed to use traditional labor doctrine,” he said. “The water cooler in the break room is no longer the classic place to congregate to discuss working matters.”

Pearce presented the example of a “disgruntled employee,” who posted a complaint about their employers’ problematic bookkeeping on Facebook, which resulted in “employees having to pay tax liabilities.”

“The conduct of this individual … was within the realm of acceptability, but most importantly their conduct was protected concerted activity, and we ruled their termination to be unlawful,” he said.

Another issue the NLRB faces is determining where its jurisdiction lies. According to Pearce, assertion of jurisdiction can have consequences both for the implementation of the act and for the role of the board.

For example, the board declined to assert jurisdiction in the Northwestern University football players case in 2015, in which the NLRB decided not to represent the players in their effort to unionize and be recognized by the University as employees.

Pearce said the board’s decision was based on the University’s status as a private school in a public school sports league, meaning the board did not have jurisdiction.

“Asserting jurisdiction in that dynamic where the overwhelming majority of the sports division consists of public sector schools outside of the Boards, would probably make that structure more unstable, so we decided to not assume jurisdiction,” Pearce said. “But we left open the question of whether or not a student could be an employee of the university, a question that was addressed in the Columbia case.”

Pearce concluded by citing “outreach and education” as his vision for “these modern times.”

“We can’t independently investigate violations or facilitate collective bargaining without the public first initiating the process,” Pearce said. “That means the public needs to know their rights and obligations.”

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