Articles

September 17, 2021

Earlier this month the majority of the National Labor Relations Board’s (NLRB or Board) five-member panel officially swung Democratic.  Prior Administrations have taken years to switch the NLRB to their control, but not President Biden!  Why is this so important? The Board is charged with deciding cases and enacting regulations impacting both unionized and non-union workforces.  As a result, it is anticipated that new case rulings will liberalize current legal standards impacting the workplace and overturning prior rulings of the Trump Administration’s Republican-majority Board.

Like it or not, politics often impacts the NLRB and its interpretation of labor laws.  As we are witnessing, each new Administration has different priorities and agendas. The Trump Administration was heavily pro-employer, while the Biden Administration has declared it will be the most pro-union Administration in history.  All of this back and forth may make employers feel like they are stuck in the middle of a political game of ping pong, and they are right.  Many of these changes in policies will be more problematic for employers with non-union workers and less of an issue for unionized employers.  Regardless of the current makeup of your workforce, business owners should be aware of the current game being played in Washington D.C. and how it could impact their business.

In addition to the new Democratic Board, the Senate recently confirmed a new pro-union General Counsel for the NLRB.  The General Counsel is the chief prosecutor of the NLRB who sets the agenda for which cases will be heard by the Board.  In doing so, the General Counsel will dictate the field employers, employees, and labor unions will be forced to play on when dealing with NLRB controlled issues at a local and national level.

The new General Counsel, Jennifer Abruzzo, is off to an ambitious start.  She has already issued a series of Memorandums that layout her agenda (click here to see full text at www.nlrb.gov).  The following is a brief summary of three of her most significant agenda items:

• GC Memorandum 21-04 covers a variety of employment and labor law matters including, what is protected activity (i.e., the kind of activity over which the NLRB has jurisdiction), collective bargaining, handbook policies, confidentiality provisions, and proper independent contractor classification.
• GC Memorandum 21-05 asserts the NLRB will be more aggressive in seeking to use temporary injunctions against employers and unions in federal district courts to stop unfair labor practices while the case is being litigated before administrative law judges and the NLRB. This is the same promise that was made during the Obama Administration.
• GC Memorandum 21-06 affirms the NLRB will seek to expand its efforts to “make whole” the victims of unlawful conduct by using the “full panoply of remedies available” under the NLRA. This means settlements will be harder to reach and the cost of violations will practically increase.

The General Counsel’s memorandums intimate existing legal standards are ripe for challenge.  Political winds always swing at the NLRB after a change of Administration, especially between Administrations of differing parties.  However, what is historical this time around is the diametric differences between the two most recent Administrations.  On the one hand, Trump, after eight years of the pro-union Obama Administration, looked to move the NLRB to the right farther and faster than any President in recent history, and now the Biden Administration is pushing back just as hard, if not harder, in the opposite direction.  It is no wonder many business owners are feeling the whiplash.

Employers should familiarize themselves with the General Counsel’s memorandums to get a sense of where things are headed.  After doing so, they should then ask themselves where they feel their organization stands with regards to these issues.  Unfortunately, with all the expected changes, it may not be enough that your business was in compliance yesterday.  Even if employers are acting consistent with existing legal standards, it can be expected the NLRB will prosecute a matter with the desire of achieving a new higher standard in order to expand the rights of employees and unions at the expense of employers.  Review your policies now so you know where you are at risk. 

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.