New and Improved: The NLRB’s Latest Moves

With a controversial complaint against Boeing, a lawsuit against Arizona and lawsuits threatened against three other states over their constitutional amendments, and rulemaking underway for a new mandatory notice posting, you might have thought that the NLRB had its hands full. But, taking a line from any good infomercial pitchman, the Board has essentially said “But, wait there’s more!” In a memo issued by the Board’s General Counsel, the Board revealed that it has more to offer.

According to a recent General Counsel Memo, the Board is considering a rule that would require employers to provide information to unions about all transfers of work, even if the employer is not legally obligated to bargain with the union about the transfer. (You can access the memo here.) Currently, employers are not required to bargain with a union about a transfer of work where the transfer involves a change in the scope or direction of the business, or where labor costs were not a factor, or where, even if labor costs were a factor, the union could not have offered labor-cost concessions sufficient to alter the employer’s decision. In a decision from earlier this year, the Board dismissed an allegation that an employer violated the Act by refusing to provide information related to its decision to relocate operations. (You can read the decision here.) The Board found that since the relocation decision in that case was not a mandatory subject of bargaining, there was no obligation to provide information about it. In a concurring opinion, however, Chairman of the Board, Wilma Liebman (former attorney for the Teamsters and the Bricklayers unions) “suggested that she would consider modifying the [existing] framework with regard to information requests if a party were to ask the Board to revisit existing law in this area.” In other words, she would consider changing the law to require employers to provide information to unions about a relocation decision even if the employer is under no obligation to bargain about that decision. The purpose of the General Counsel’s memo is to instruct Regional Directors to identify cases that would be suitable for the Board to use to change the law in this respect.

As much as the Board has already done, employers should expect that the Board will continue to adopt changes to the law that benefit labor organizations. And there is a “money-back guarantee” on that prediction!