Workplace Review: Change In Presidents Has Begun Its Effect On Federal Labor Law

• Jurisdiction: United States,Federal
• Law Firm: Brouse McDowell
• Subject Matter: Employment and HR, Contract of Employment, Health & Safety, Employee Rights/ Labour Relations
• Author: Mr Stephen P. Bond
• Published date: 11 January 2023

Even a passing glance at the Press Releases from the National Labor Relations Board (NLRB) in recent months will immediately suggest the fact that federal labor law is, step-by-step, changing - not because the National Labor Relations Act itself has changed, but because the personnel in charge of the Board have changed how they are interpreting that Act:

Release Date	Title
12/16/2022	Board Modifies Standard Governing Off-Duty Workplace Access for Employees
12/15/2022	NLRB Protects Workers from Employer Coercion During Investigation of Unfair Labor Practice Complaints
12/14/2022	Board Modifies Framework for Appropriate Bargaining Unit Standard
12/13/2022	Board Rules Remedies Must Compensate Employees for All Direct Forseeable Financial Harms
11/03/2022	NLRB Issues Notice of Proposed Rulemaking on Fair Choice and Employee Voice
10/31/2022	NLRB General Counsel Issues Memo on Unlawful Electronic Surveillance and Automated Management Practices
10/20/2022	NLRB General Counsel Issues Memo on New 10(j) Injunction Casehandling Instructions to Increase Voluntary Settlements and Streamline Processes
10/03/2022	NLRB Rules Employers May Not Unilaterally Stop Union Dues Checkoff When Labor Contracts End
09/06/2022	NLRB Issues Notice of Proposed Rulemaking on Joint-Employer Standard
08/29/2022	Board Rules Workplace Policies Limiting Wearing Union Insignia, including Union Apparel, are Unlawful Absent Special Circumstances

While all these actions have an impact on union-organized employers, many of them can spill over to affect non-unionized employers as well without them even being aware.

What is this NLRB anyway? And why does a change in Presidents mean that labor law is changed as a result?

Specifics about the NLRB's makeup

The National Labor Relations Board (NLRB) is an independent federal agency created in 1935, vested with the power to safeguard employees' rights to organize, engage with one another to seek better working conditions, choose whether or not to have a collective bargaining representative negotiate on their behalf with their employer, or refrain from doing so. The NLRB also oversees claims of unfair labor practices committed by private sector employers and unions, as well as conducts secret-ballot elections regarding union representation. Because this system is premised on the rights of employees to act in a collective manner, the legal protections can extend to nonunion situations in which employees argue that they are acting in a collective manner to address some issue, even if no union is in place.

The Board itself has five Members and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year. As you may have guessed, the President will typically appoint someone from his own party, so that, as individuals are replaced, the controlling majority on the Board shifts to his party (if it wasn't already). A democratic majority came about in September of 2021; and things have been changing ever since. [To be sure, this is nothing new - some of the "doctrines" that are in play have changed back-and-forth multiple times over the course of years, with each new Administration - making it difficult for labor lawyers to be certain of the outcome for some issues from one case to another.]

In addition, the NLRB has a "General Counsel," in charge of investigating cases and ultimately deciding which ones to prosecute. The General Counsel is also appointed by the President to a 4-year term. President Biden exercised his authority to remove the previous General Counsel¹; and, on July 22, 2021, Jennifer A. Abruzzo began serving as General Counsel for the NLRB. Having the authority to decide which cases are prosecuted sets the tone and helps shape the direction of how federal labor law develops.

General Counsel Openly Anticipated Changes She Intended to Work For

Before the Board's majority had been changed, the new General Counsel...