Under the Biden Administration, Turbulence Awaits Employers at the NLRB

 In

President Joe Biden wasted little time in making his mark on the National Labor Relations Board (“NLRB” or “the Board”) – a development of import to all employers, as the law it enforces, the National Labor Relations Act, protects the rights of all employees, not just union members, to engage in concerted activity regarding the terms and conditions of their employment (i.e. Section 7 rights).

Within minutes of being sworn in, the Biden administration requested the resignation of NLRB General Counsel (GC) Peter Robb. When Mr. Robb declined to resign his position as the head of the independent federal agency, he was summarily fired. The next day, President Biden requested the resignation of Acting GC Alice Stock, who had been elevated from her previous Deputy GC position following the firing of Mr. Robb. When she too refused to resign, she was terminated.

While it is customary for an incoming administration to make appointments to vacancies on the five-member Board, no President has summarily fired the incumbent GC prior to the end of the GC’s Senate-confirmed four-year term. The only other time the NLRB’s General Counsel was relieved of his position by an incoming President was in 1950 when Harry S. Truman sought and received the resignation of GC Robert Denham.  These quick and unprecedented actions – Mr. Robb’s ouster was the first time a NLRB GC had been terminated by an incoming President – signals a sharp leftward turn for an agency seemingly intent on unwinding Mr. Robb’s and the majority Republican Board’s achievements over the last four years.

In a more typical move, President Biden also elevated to Chairman the Board’s only Democratic member, Lauren McFerran, replacing Republican John Ring who will remain a Board Member. The Biden administration will have the opportunity to fill an open seat and to replace Republican Board member William Emanuel when his term ends in August. This will create a Democratic majority on the Board for the first time since September of 2017.

Peter S. Ohr, previously the Regional Director of the NLRB’s Chicago field office, has been named Acting GC until the Biden administration nominee is confirmed by the Senate.

Making Union Organizing Easier. We expect the new GC and the eventual Biden Board to use rulemaking and adjudication to overturn major Trump Board decisions. The intent and effect of these reversals will make it easier for unions to organize. Specifically, we expect the Biden Board to issue a slew of decisions and rules that will:

  • Permit Micro-Units: It will not take long for a case to reach the Board where a union seeks to represent a small pocket of employees within an employer’s larger, functionally integrated operation. The Biden Board is expected to overturn the 2017 decision in PCC Structurals and return to the Obama-era standard requiring an employer to establish that additional employees it seeks to add to the union’s preferred petitioned-for unit have an “overwhelming community of interest” with the petitioned-for unit. In practice, this elevated burden is virtually impossible to meet. Consequently, unions will organize smaller groups of employees who support the union with little concern that the employer may be able to add to the voting unit other employees who share something less than the overwhelming community of interest with the union’s preferred bargaining unit.

 

  • Allow Employee Use of Employer E-mail Systems for Union Organizing: The Trump Board concluded that employees do not have the right to use employer IT resources to engage in Section 7 activity, which includes organizing efforts, unless e-mail is the only reasonable means for employees to communicate with each other. The Biden Board is likely to return to a standard identical or similar to the Obama Board’s decision in Purple Communications, which concluded that employees have a protected right to use employer resources for non-work purposes.

 

  • Revising Election Procedures – A Return to “Ambush Elections”: The Trump Board used rulemaking to extend the number of days between a union petition and an election. By pushing back an employer’s deadline to file a statement of position and increasing the number of days between a petition and pre-election, among other procedures, employers were given additional time to communicate its message to employees. The Biden Board will likely seek to return to the Obama-era “quickie election” rules that will shorten the time between petition and election, thereby increasing the likelihood of unionization.

 

  • Ease Restrictions on Non-Employee (i.e. Union Organizer) Access to Employer Property: The Trump Board issued several decisions strengthening employer property rights and narrowing the rights of non-employees seeking to engage in union organizing and other Section 7 activity on employer property. The Biden Board is expected to roll back those decisions and permit non-employees to access an employer’s private property to engage in union activity even if that employer does not permit other third parties to use its property for similar activities.

 

  • Return to the Less-Exacting Browning Ferris Joint Employer Standard: The Biden Board is expected to chart a return to the joint employer standard established in the 2015 Browning Ferris decision, which was overturned by Trump Board rulemaking. The Browning Ferris standard found a joint employer relationship even where an alleged joint employer did not exercise “direct and immediate” control over essential working conditions, and where a company’s control over another business’s workers was “indirect, limited and routine, or contractually reserved but not exercised.” A lesser joint employer standard would require both joint employers to bargain with the union representing employees of the joint employers.

 

Reversing Other Major Trump Board Decisions. In addition to overturning the decisions discussed above, the Biden Board should be expected to roll back Trump Board decisions:

  • Standard for Analyzing Facially Neutral Work Rules: The Board’s 2017 decision in Boeing Co. established a framework for analyzing work rules that, on their face, do not violate the NLRA. The result in most post-Boeing cases has been a finding that the contested rules did not violate the NLRA. Expect the Biden Board to revisit the appropriate standard for analyzing these work rules, and the resulting standard to produce more decisions finding the contested work rules to violate the NLRA.

 

  • Employer Unilateral Changes: The Trump Board’s decision in MV Transportation made it easier for employers subject to a collective-bargaining agreement to implement unilateral changes without first notifying and bargaining with its employees’ union. Expect the Biden Board to return to a legal standard making it more difficult for an employer to act unilaterally without bargaining.

 

  • Withdrawal of Recognition: The Trump Board also made withdrawing recognition of a union an easier and more straightforward process. The Biden Board is likely to nix this holding, as well, if given the opportunity.

PRO Act. Additionally, Democrats have made no secret of their desire to pass legislation that will further union organizing. The Protecting the Right to Organize (PRO) Act would not only codify several outcomes sought by the Board, but also provide the following gifts to unions and employees:

  • Ban right-to-work laws, which prohibit employers and unions from negotiating provisions requiring that employees pay union dues as a condition of employment.
  • Provide a private cause of action for certain violations and provide for compensatory damages to claimants.
  • Reinstate the “Persuader Rule,” which requires various employer disclosures, some of which arguably interfere with the attorney-client privilege.
  • Eliminate the prohibition of secondary boycotts, thereby subjecting employers to labor disputes to which they are neither a party nor capable of fixing.
  • Limit who can be classified as independent contractors.

In summary, turbulent days are ahead for employers. The employer-friendly decisions issued by the Trump Board will be overturned and replaced by decisions and rulemaking providing for union-friendly and pro-employee standards and outcomes. We encourage employers to take immediate steps to prepare for the above changes by training their supervisors and managers on maintaining a positive work environment where employees would not seek or be open to union organizing. As always, we will keep you updated regarding developments at the NLRB.