National Labor Relations Board Control of Union Discipline and the Myth of Nonintervention

Abstract

This article explains how the NLRB, contrary to its protestations of noninterference with internal union affairs, has perfected its grip on union self-governance through control of the union disciplinary processes. The disparity between the Board's policies and its actions discredits the Board's proclaimed abstention. Second, this article examines whether the NLRB overreaches its regulatory authority through its intervention in the officer selection and discipline processes. NLRB regulation of union discipline rests primarily on section 8(b)(1)(A) of the Labor Management Relations (Taft-Hartley) Act.8 The Board's early decisions under this section, as well as judicial precedent, defined a narrower role for NLRB intervention than the role presently claimed by the Board. Courts increasingly are rejecting the NLRB's assertion of broad regulatory authority. The Supreme Court's union discipline cases, decided over a decade ago, initiated these judicial misgivings. Moreover, the Supreme Court's more recent decisions in Pattern Makers' League v. NLRB and Communication Workers v. Beck require a reappraisal of expansive NLRB monitoring of internal union life. Pattern Makers' and Beck ring in a new era of voluntary unionism that demands acknowledgement. Finally, this article addresses the various conflicting interests that underlie and oppose NLRB intervention in internal union affairs. The Board's decisions rarely discuss their practical impact on unions or their contribution to the national policy aspirations that unions be governed democratically and independently. The desirability of Board intervention, however, should be assessed by considering all of the legitimate conflicting interests raised: the individual rights at risk, the union majority's collective associational interests, and the wider public interest in union democratic selfgovernment with minimal governmental interference."