Opinion/Analysis
The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions emphasizes President Biden’s goals for promoting workers’ rights to organize. After less than a month in office, he had already begun to take action, signaling that these issues are a priority for the administration. The following highlights current and potential developments within labor law under the new administration that may impact manufacturers in 2021.
Removal of the NLRB’s General Counsel
Within hours of his inauguration, President Biden fired the National Labor Relations Board’s (NLRB’s) general counsel, Peter Robb, whose term was set to expire in November 2021. The general counsel has prosecutorial authority to enforce the National Labor Relations Act (NLRA), and those serving in that position have traditionally served out their terms when there has been a change in presidential administration. Employers facing unfair labor practice charges have already challenged the president’s authority to oust the general counsel, arguing that the chief prosecutorial position was designed to operate free from this type of political pressure. The president has named a career agency employee and former regional director in Chicago, Peter Sung Ohr, as acting general counsel, but his authority to issue complaints and prosecute unfair labor practice cases remains uncertain until the courts resolve the issue.
Acting General Counsel Ohr has already taken several union-friendly measures to shift the agency’s prosecutorial focus. He has rescinded memoranda that required unions to comply with rigorous recordkeeping, such as about lobbying costs, and to disclose more detailed information to employees about dues and fees.. Additionally, Ohr encouraged the NLRB to dismiss complaints involving a union’s use of Scabby the Rat—a giant inflatable rat that unions have installed outside of workplaces they’re picketing—to avoid wasting “valuable Agency resources.”
The NLRB’s New Focus
While the President has shifted General Counsel position, the majority of the NLRB, a five-member decision-making body, will not change until sometime near Labor Day. Republican appointees hold three seats, one seat is vacant, and Chairman Lauren McFerran, a Democratic appointee, holds the remaining seat. On August 27, 2021, Board Member William Emanuel’s term expires, meaning that Chairman McFerran and her yet-to-be named Democratic colleagues will take the majority.
Earlier this month, while speaking at the 47th Annual Robert Fuchs Labor Law Conference, Chairman McFerran made her position on the NLRB’s new focus very clear. She described the impact of various decisions by the current NLRB majority on the rights protected by the NLRA as “death by a thousand cuts.” Specifically, Chairman McFerran noted that she views who the NLRA protects, what the NLRA protects, and how employees exercise their rights under the NLRA much more broadly. She criticized numerous decisions, including Boeing, which provides employers a standard for developing handbook rules, Caesar's, which provides that employees do not have presumptive authority to use an employer’s e-mail system for nonbusiness purposes, and several others that she stated elevated employer property rights over employees' Section 7 rights. Of significance, she was critical of the Board's General Motors decision, which established a new legal standard for determining whether an employer has violated the NLRA when taking disciplinary action against employees who have engaged in harassment or abusive conduct.
It is reasonable to expect major developments in labor law in the next few years. A more union-friendly Board is likely to make changes to or overturn several crucial decisions by, among other things, expanding the definition of who is an “employee” (versus an “independent contractor”); who qualifies as a “joint employer,” and what constitutes protected concerted activity.
For workplace rules, the Lutheran Heritage standard has a good chance of returning, which would make it a violation of the NLRA if a workplace rule could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. The holding of Purple Communications may also be restored to allow employees the right to use their employer’s email system during nonworking hours for purposes protected by Section 7 of the NLRA.
Further, unions, who may have been waiting for a change in the Board composition to pursue their charges, are likely to be more active in promoting a union-friendly agenda through the NLRB.
Possible Legislative Changes: The Protecting the Right to Organize Act (“PRO Act”)
In addition to administrative action, legislators in the House and Senate recently proposed the PRO Act—legislation that would bring significant changes to the NLRA that would favor unions. Among the numerous proposed changes, the legislation would ban the right-to-work laws that exist in 27 states. Doing so would allow unions to insist that a collective bargaining agreement require that all employees in a bargaining unit pay union dues and fees, regardless of whether they object.
The bill would also codify an expansive joint employer rule that would extend the definition of liability for employers of temporary and contract workers. The law would also re-introduce the expedited union election rules, restrict employers’ ability to speak with employees who are being targeted for unionization, and implement a card-check recognition process in certain circumstances. The bill, if signed, could bring major changes current labor law, and employers may want to familiarize themselves with the scope and potential impact of those implications.
Natale V. DiNatale is chair of Robinson+Cole’s Labor Relations Group. He counsels employers on all facets of employment law and has devoted his practice almost exclusively to management-side labor relations in the private sector.
A member of Robinson+Cole’s Robinson+Cole’s Labor Relations Group, Kayla N. West focuses her practice on representing private sector employers in labor and employment matters as well as defending employers in federal and state court and before administrative agencies.
