Op Ed: Employers Giving the Finger to the NLRA and Workers’ Rights, What’s New?

In light of the D.C. Circuit  U.S. Court of Appeal’s decision in Noel Canning on January 25, 2013, which denied enforcement of a Board order on the basis that President Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) were unconstitutional, employers celebrated by throwing their middle fingers in the air toward the direction of the National Labor Relations Act (NLRA) and workers’ rights.  Noel Canning will likely be resolved by the U.S. Supreme Court, but, already some employers, like Prime Healthcare Services, have publicly stated they will not follow any pro-worker decision issued in 2012 or any future decision issued by the current NLRB, even though the Noel Canning decision applied to only one specific case.  See Terry Baynes, “Exclusive: Hospital chain defies NLRB rulings after court decision” available at http://www.reuters.com/article/2013/02/01/us-nlrb-hospital-idUSBRE91001320130201 (last visited Jan. 31, 2013).

But what’s new?  Employers, like Prime Healthcare Services, who do not respect the NLRA or workers’ rights, will use any justification—no matter how far-fetched or ridiculous—not to comply with the NLRA and respect the rights of workers.  There is no doubt, however, that the position that all NLRB decision are now void is based purely on tactical expediency rather than rigorous legal analysis.  At the end of the day, this position is nothing more than a deliberate effort to undermine the rule of law and workers’ rights. 

But this position is also short-sighted.  The NLRB has stated that it “will continue to perform [its] statutory duties and issue decisions.”  In fact, over the last week since the D.C. Circuit issued Noel Canning, the NLRB has issued decisions, and its Regional Offices are processing and investigating unfair labor practice charges filed against employers.   By refusing to follow federal labor law, which is shaped in part by NLRB decisions, employers like Prime Healthcare Services are simply delaying the inevitable, along with facing the prospect of stiffer penalties and increased back pay awards as a result of their intentional violations of the NLRA. 

Employers should find a better use for their middle fingers.  If they need any suggestions, we are sure there are plenty of workers whose rights have been violated or who have cases pending before the NLRB, that can give them some.

By Bruce Harland

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