by their intransigence in negotiations by "permanently" replacing the strikers and then petitioning for a new election, 200/ and by punitively locking out employees and then soliciting them to return as if they were economic strikers. Indeed, "bargain 201/ ing to impasse" as a "prelude to union ouster" is a tactic recommended by consultants.202/ These methodical manipulations of the labor laws are designed to turn the bargaining process into its contradiction: confrontation and then dissolution of the relationship itself. 203/ Decertification and deauthorization, which under the law are restricted to employee efforts alone, also receive significant attention from consultants who advise employers how they can lawfully or surreptitiously encourage these efforts, and how to campaign once a petition is filed.204/ Although no firm data exists concerning the degree of consultant involvement in the sharp rise of decertification petitions, one survey of decertification elections conducted in 1975 determined that "[1]egal or expert assistance was often used [by management] when a union was decertified but almost never when union representation was re205/ tained. This, too, is a well-organized effort to foil the law and destroy established contractual relationships. "employer" includes "any person acting as an agent of an employer, directly or indirectly...' 206/ The Act further declares: In determining whether any person is acting were actually authorized or subsequently rati fied is not controlling.207/ A common-law agency relationship must exist before a third Doubtless a hired consultant, just like any supervisory or other employee who acts at management's behest with respect to employees, is an "agent" of management. The question is, does the NLRB also treat consultants as "employers", as Section 2 (2) directs, by holding them liable as party respondents in unfair labor practice complaints? A review of cases in which consultants either coached or carried out the violative activity reveals that such liability is rarely imposed, and that the Board is content to impute all acts to a single defendant, the employer. 209/ On the other hand, in each case where the consultant has been named as a respondent, the consultant has engaged in direct overt 210/ activity aimed at employees. N.L.R.B. v. Selvin- is illustrative. The Ninth Circuit ordered enforcement of an NLRB order directed at labor consultant Gladys Selvin for violations of Sections 8 (a) (1) and (5) in her capacity as an employer bargaining agent. The Court noted that Selvin had a long history of involvement in unfair labor practices, appearing in ten previous cases, 211/ but this labor law recidivist had been named as a party only twice before. In Sierra Academy of Aeronautics, Inc. and Rolland Weller and Jerry Weller, d/b/a Transamerican Employers Group, Inc. 212/ the Board named two labor consultants as parties for promising unlawful benefits to employees during a representation campaign, and attempting to trick a pro-union employee so as to prevent him from going to work on the election date. The Trial Examiner was careful to note that this personal liability was predicated 213/ on the consultant's agency relationship with the employer. [I]t must appear that the lawyer was purposely imminent. The Board has not expressly adopted this view, but there is no apparent reason why the Board should substantively distinguish between a consultant's direct and indirect dealings with employees. Indeed, when a consultant acts secretly, employees are disadvantaged by their ignorance of his role. The parallel to the advice-persuasion dichotomy under the LMRDA is obvious, and just as unconvincing. - 217/ By not holding consultants personally responsible for the unfair labor practices they commit or encourage, the Board encourages consultants to act irresponsibly. One présumes a consultant and particularly an attorney-consultant -- would act more prudently if he knew he could also be charged personally with an unfair labor practice. Most employers will face a representation situation only once; consultants depend upon them for their livelihood, and would not likely be desirous of establishing a record as a recidivist law breaker. Therefore, to the extent that an employer commits unfair labor practices at the behest of a consultant, or a consultant acts "directly", or effectively controls the campaign and even the consultant should be the employer's business operations, 218/ charged as well as the employer. 219/ A more aggressive prosecu torial policy on this front by the Board might force employers and consultants alike to moderate their unlawful excesses. b. NLRB Remedial Authority: The remedial authority of the NLRB has long been viewed by labor as too slow and too weak to deter or punish employer abuses effectively. 220/ Labor's complaints would likely apply with equal force if the NLRB prosecuted consultants directly. Nevertheless, the Board currently falls far short of what it could be doing to maximize its control over improper consultant activity. The cases involving labor consultant Gladys Selvin are instructive. In ten cases between 1958 and 1975 Selvin was found repeatedly to have practiced the same unlawful bargaining tactics for various employers, characterized by a predisposition to bargain in bad faith and carried out with a variety of vexatious and outrageous methods. In yet another case a Trial Examiner 221/ reluctantly found a union "technically" guilty of a Section 8 (b) (1) (B) violation for picketing Selvin's employer client to force her removal as its bargaining agent: [B]er reputation...is so notorious that one may well question whether any employer desirous 223/ Nevertheless, the Board did not name Selvin as a party respondent |