Protecting Employers Since 1985
Look for An About Face in the NLRB’s Business-Friendly Posture
The new Biden administration signaled an aggressive approach to changes at the National Labor Relations Board (“NLRB” and/or “Board”). On his first day in office, President Joe Biden made good on a threat to fire National Labor Relations Board General Counsel Peter Robb, who had rebuffed an earlier request to resign.
Robb’s firing ends a fast-moving showdown between Biden and the incumbent GC who was appointed to a four-year term in November 2017. No president has previously removed a sitting General Counsel. Past Presidents have waited until the General Counsel’s term expired, and Robb had ten months remaining in his term.
General Counsels wield significant power to shape federal labor policy because they decide which labor disputes to prosecute and craft the legal theories staff attorneys present to the five-member Board.
Robb had advanced numerous business-friendly interpretations of the National Labor Relations Act (“NLRA”) since taking office. Robb secured Board decisions expanding employer powers to make changes to job terms without the ok from worker unions. Robb narrowed worker access to employer property and equipment among others.
Look for the new Biden administration to move quickly to take control at the NLRB. Acting as swiftly as they did signals that the NLRB is a huge priority for the new administration. Here are some likely targets for change:
- Tighten rules on unilateral change.
- Reduce employer rights to restrict use of their property and equipment.
- Return to union-friendly micro-units in union elections.
- Toughen independent contractor definitions.
- Toughen standards on joint employer issues.
- Quicker elections.
- Less opportunity for employers to challenge election voter eligibility.
- Closer scrutiny of employee handbooks to search for issues that arguably interfere with Section 7 rights.
- Greater use of injunctions to reinstate fired workers.
- Overrule important 2019 decision allowing employers to cease deducting union dues at contract expiration.
- Expand rights of unions to obtain NLRB review of arbitration awards.
- Allow graduate students to organize under the NLRA.
- Tying mega-companies and franchisees together for liability in Unfair Labor Practice (“ULP”) cases.
The reality is that this may take some time because NLRB members have staggered terms. But the new Biden administration ignored normal protocol in the Peter Robb case. And, they may move forward in a super-aggressive manner. In any event, look for big union-friendly changes.
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