NLRB Still Going Hard

NLRB Organizing Policy Workers

           Baja California           Any list of Biden administration’s accomplishments for workers has to include the appointments to the National Labor Relations Board (NLRB), especially its General Counsel, and the pathbreaking work they are doing.  Admittedly some of this is low hanging fruit in undoing the pro-management bias of the Trump board.  Another piece of the amazing record they are assembling though is reviving efforts that flagged under the Obama NLRB or were left unfinished or overturned by the Trump NLRB, that the Biden group has now dusted off, spruced up, and moved forward once again with new clarity and conviction.  More amazingly are some of the initiatives that they have harnessed together in new decisions on persistent issues with their more expansive and correct view of the Act and their mission.

Just looking at decisions and initiatives in recent months makes my case simple and straightforward:

  • The NLRB made it easier for unions to secure representation elections for bargaining units that are narrower than a facility’s full workforce, reversing a Trump-era ruling that lowered the bar for employers to expand units past unions’ proposed bounds.
  • The NLRB held that employers violate federal labor law by ceasing to transmit dues to unions after collective bargaining agreements expire, reversing a 2019 ruling in the second major shift to precedent of the Biden administration. Local 100 has a case pending and waiting a resolution on exactly this issue after one company bought another in healthcare.
  • The NLRB limited the power of property owners to block union activity by workers for employers that operate on their property, walking back a 2019 decision lowering the bar to oust picketers.
  • The NLRB issued a proposal to roll back a 2020 rule that altered its representation election process by making it easier for workers to secure votes to remove their unions.
  • The NLRB rejected a company’s request to undo a decades-old standard governing how employers may question workers when defending against unfair labor practice charges, with the board’s Democratic majority reversing course after the previous board set up the case for reversal last year.

Those decisions rebalance the lopsided scales that the Trump board had imposed to serve managements’ interests over workers.  Take the decision about free speech rules on private property, this has been a swinging pendulum back and forth, since Justice Thurgood Marshall wrote the first majority opinion allowing picketing and protests on mall property, which the Supreme Court then retracted four years later and eventually ended up in the states, where only New Jersey, New York, and Oregon allow such activity.  The board stepping into this fight again is huge!

The board has also announced a rule that has employers in conniptions once again by indicating it is going to clarify joint-employer status.  The NLRB is now clear that it wants a rule that revamps its test for deciding whether linked entities are joint employers under federal labor law, aiming to ease organizing and collective bargaining for staffing, franchise and other workers with ties to multiple employers.  This is a common organizing problem and was at the heart of the McDonalds organizing campaign and many others.  Business groups have reportedly already amassed thousands of their members to go wild on this one.

In paving new ground, as promised, the National Labor Relations Board has broadened its arsenal of remedies for unfair labor practices to include requiring employers to compensate workers for “all direct or foreseeable” harms that resulted from a labor law violation.  The weak penalties for ULPs have been a huge problem for workers collective actions, knowing that the company may only have to post a notice, pay the difference between unemployment and their wage, and never admit wrong, while often delaying settlement, and leaving a fired worker hanging for years.  This rule might mean companies would have to pay real money for breaking the law, and that would finally put some teeth in the law and the wind at a worker’s back, rather than blowing in her face, a victim of the employer’s impunity.

A new day isn’t here yet for workers, but the NLRB is doing its part in the dawning. We have to do ours now.