Opinion / analysis
Since the passage of the National Labor Relations Act in 1935, the evolution of labor law has changed – almost invariably – as the political winds of the Presidency and Congress have changed. It will be no different with the move from President Trump to President Biden and his administration, as well as the current Congress.
Unlike the federal judiciary, labor and labor inspectorate appointments change at the end of their respective terms. These include appointments to the National Labor Relations Board, General Counsel to the Board, and other regulatory agencies.
The Chairman may therefore change the composition of the Board of Directors and the General Counsel and other regulatory authorities.
In the case of federal justice, its legal interpretation and legal development tend to be gradual and largely unaffected by the whims of politics. The National Labor Relations Board, on the other hand, may experience some dramatic shifts in the interpretation of the law and its evolving labor law. So what should we expect for at least the next four years?
An important change at the top
A notable move by President Biden was the termination of President Trump’s appointment of NLRB General Counsel. In the past, the presidents waited for the end of the GK’s term of office to change.
This is an important change as the GC decides which cases will be prosecuted and which will not. Therefore, the termination of the GC changes which cases will be prosecuted and how labor law will evolve.
Since the board also has the power to make decisions, it is likely that the rules of organizing, collective bargaining, and other worker protection will do so.
The members of the NLRB, like the GC, determine evolving labor law based on their judgments. In the case of both the GC and the Board, the implications for US labor policy are great and are often referred to as “flip-flops”.
Let’s highlight some of the changes (or the potential for “flip-flops”) for at least the next four years.
How is the majority of NLRB changing?
A full board consists of five members. The majority of NLRB members under the Trump administration were Republicans, and under the Biden administration, the NLRB will most likely become Democratic when the members’ term ends. Here is the Biden Board as it exists today:
President Biden has previously named Lauren McFerran as chairman of the board. As early as the summer of 2021, President Biden with a democratic party affiliation will be able to obtain a majority of the board seats.
How will a Biden NLRB affect the organization?
As of 2015, unions have won well over 50% of organizing campaigns for employers to unionise – and the percentage is increasing every year. However, the coronavirus / Covid-19 pandemic impacted the frequency and win rate of organizing promotions during the worst part of the shutdown. The unions lost more than they won in October 2020, but then regained their strong performance at the ballot box.
One possible explanation is an almost complete transition from manual to postal voting. Many management lawyers have opposed this transition on the grounds that a union has undue influence over voters, but NLRB regional directors across the country have extensive unilateral and incontestable powers to require postal voting. With a more liberal board, we should expect more favorable decisions and rules to favor the unions.
How will a Biden presidency affect NLRB decisions and labor law reform?
It’s clear that President Biden will support laws like the Protecting the Right to Organize Act of 2019 (PRO Act), which in many ways is similar to the Obama-era Employee Free Choice Act (EFCA) when it comes to that National law to reform labor relations law. Under the Pro Act, unions will be favored with milder electoral rules and faster organizing and elections – and probably more importantly, independent contractors will be reclassified into workers who are protected by the NLRA and have the right to vote in union elections.
As the composition of the Board of Directors changes to reflect a more liberal stance on the cases it has decided, be prepared for union and workers’ rights to be strengthened when it comes to:
- Protected and concerted actions by employees
- Employee canvassing to support unions in the workplace
- Electoral rules that result in quick elections and less time for employers to fight the union
- Employee social media communication
- Negotiated neutrality agreements to circumvent secret elections and lead to voluntary recognition
- An attempt by an employer to enforce confidentiality agreements or instructions against employees involved in an investigation
- Joint employer liability certificates.
What is less clear, however, is how the board of directors will deal with the employer’s obligation to negotiate if an employer has taken quick action during the coronavirus / Covid-19 pandemic.
The board will tip over and become more liberal in its support for trade unions and workers’ rights, and will scrutinize employer measures that limit these rights. Although unions have steadily lost membership since President Reagan permanently replaced air traffic controllers during the PATCO strike, unions have demonstrated the ability to win a much higher percentage of their organizing campaign elections.
It is unlikely that President Biden can enact labor law reform. But if he does, it will be historic because no president has been able to do this since Jimmy Carter. With a new presidential administration and the added impact of the coronavirus / Covid-19 pandemic, now is a good time for employers, unions and employees to review their strategies and policies.
Robert Chiaravalli, Esq., Is a practicing labor law attorney and founder of Strategic Labor and Human Resources, LLC. The firm is known for its expertise in workplace issues, particularly in developing and executing strategies in labor and employment relationships, compensation and benefits, global talent management, interim leadership roles, alternative dispute resolution and specialist executive search that drive profitability and the Workplace improves effectiveness through people.
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