Along with death, taxes, and Midwestern winters lingering into May, the National Labor Relations Board (NLRB, or "the Board") reversing course after a change in administrations has become one of the few certainties we can bank on in this increasingly unpredictable world.
With a democratic majority controlling the five-member Board, and President Biden's handpicked General Counsel Jennifer Abruzzo leading the agency's enforcement efforts, major changes are afoot—through formal rulemaking, case decisions, and an aggressive enforcement philosophy from the General Counsel's office.
Suffice it to say, just as the broad changes instituted by President Trump's Board and General Counsel tended to relax constraints on employers, create (or reinstitute) rules disfavored by unions, and narrow the scope of the National Labor Relations Act's application, changes contemplated by the current Board and General Counsel are likely to enhance the ability of unions to organize and win elections, inhibit employers from opposing organizing campaigns, and broaden the scope of workers covered by the Act.
Notably, this NLRB pro-union policy agenda coincides with a number of high-profile victories for organized labor, including successful organizing campaigns at an Amazon facility on Staten Island, the REI store in the SoHo area of Manhattan, and Starbucks outlets across the United States.
Among a number of key issues, the Board and the General Counsel have indicated that they intend to change course on (or revisit) rules and precedents regarding employer handbook policies, independent contractor status, joint employer status, and the ability of employers to hold mandatory employee meetings during union organizing campaigns. Perhaps most notably, the General Counsel seeks to reinstate a controversial precedent broadening the circumstances under which the Board will order an employer to recognize and bargain with a union without a secret ballot election. The General Counsel raised this issue, and several others, in a pending case called Cemex Construction Materials. We will be covering that decision in detail as soon as it issues, which we expect to happen sometime this summer.
In the meantime, we recommend that all employers—union and non-union alike—take the opportunity now to review policies and practices that may be impacted by Cemex and other forthcoming Board decisions. Given the impact of political ping pong on employer obligations under the Act, the savviest employers aim to create polices and employee relations strategies that are optimized for durability.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
