By: Andrew Weiss
The Keynote Speaker of the 2016 Hofstra Labor & Employment Law Journal Spring Symposium: Technology in the Workplace, was none other than Mark Gaston Pearce, Chairman of the National Labor Relations Board. With Verizon workers picketing on strike just seconds down the road, the scene was set, and the topic was labor.
Pearce began his talk by explaining how the NLRB’s presence has only increased over recent years, with decisions concerning hot topics like Facebook putting them on the map and making them more well known. However, his concern was that the common knowledge of labor rights had diminished in the public. He explained that labor was not taught as frequently in schools and how the average person in his opinion, was now less aware of laws and obligations concerning labor and employment. Pearce then began by explaining some of the basics. “Worker’s rights are not innate” he explained, “they are statutory and come from the NLRB.” The NLRB of course, being the agency in charge of labor rights stemming from the National Labor Relations Act which enabled the agency. Pearce explained the difficulty that often comes up in his work of applying statutory language that today is over 80 years old. Despite this, over 90% of labor disputes are currently resolved by the NLRB Pearce stated; and when the industry finds new ways of doing things the NLRB is here to continue solving this nation’s problems.
Pearce went on to discuss some labor cases that touched on the technology theme of the symposium. He explained how the NLRB has continued to work toward securing worker’s rights in the face of technological advances. Specifically in a case concerning Whole Foods, Pearce described the changes made to protected communications in the workplace. The decision apparently allowed for employees to make recordings in their workplace without the previous permission of the employer. Pearce explained that the rule against this implemented by Whole Foods was made under the effort to “encourage communication” and “eliminate the chilling effect of worrying you are being recorded. However the NLRB found these interests to not be compelling, and subsequently shot down the rule. However, Pearce cautioned the hastiness with which such decisions are made and explained how special rules had to be instated against this type of action in workplaces such as hospitals which need to be protected against certain actions and therefore may have a more strict definition of concerted activity.
The conversation then took a turn when Pearce deviated from the technology theme of the day; instead deciding to speak about last year’s controversial NLRB decision concerning the Northwestern Football players who attempted to unionize and collectively bargain against their school. Pearce briefly ran over the facts that in August of 2015 the NLRB decided against the Northwestern students determining there was no employer-employee relationship. He explained that only 17 of the 125 football schools were private, and that because the NLRB’s jurisdiction wouldn’t apply to those that were public, they decided the ratio was not compelling enough to protect those students. Further, the fact that the football schools were all already organized under the NCAA meant that this was not necessarily a system the NLRB wanted to intervene in, worrying it could compromise the university football system as a whole and create confusion further injuring the rights of players. Pearce remorsefully stated that had the 17 to 125 ratio been different, that perhaps we could have seen a different outcome to the case.
Despite the controversial decision, Pearce goes on to explain that the NLRB does its best to encourage collective bargaining, and that its decisions change more than other agencies due to its attempts to keep up with modern times. Business models are not static, technology is not static, Pearce states. While most agencies attempt to work with precedent and remain consistent, Pearce believes the NLRB consistently does what is needed to create fair labor relations, but that this often means overturning precedent and changing in relation to politics and other modern concerns.
Overall, Pearce is hopeful for the future, and believes the best thing we can do to improve labor in the future is increase the education surrounding labor law so that the public can bring the cases to the NLRB so that it may ensure fair rights for all workers in the country.