While union activity remains at near record lows in the private sector, the new administration has sent a strong early signal that it hopes to change that situation and that it will not be patient in taking steps it thinks will help organized labor. On his first half day in office, President Biden broke with more than 50 years of tradition and fired the general counsel of the National Labor Relations Board (NLRB) before the end of his four-year term. This serves as a warning to employers that the recent relatively employer-friendly posture of the NLRB will soon be coming to a close, and that pro-union policies and precedents will likely be a hallmark of the next four years. Employers that face union organizing campaigns or that have disputes with incumbent unions, therefore, need to be more mindful than ever about carefully following the law.
The National Labor Relations Act (NLRA or Act) governs most private sector labor relations in the United States. The NLRA is administered by the five-member NLRB, which typically interprets the Act in the context of individual cases brought against employers or unions by the NLRB’s general counsel. The general counsel has significant discretion in determining which cases to pursue, and thus has a good deal of control over the NLRB’s overall agenda. Because cases can take a long time to wend their way through the administrative system to the NLRB, there is usually a significant delay in changing direction when a new administration takes over. This is especially true if the incumbent general counsel has a significant amount of time left in his or her term, because the types of cases that change precedent take even longer to reach the NLRB.
The five members of the NLRB are appointed by the president, with the advice and consent of the Senate, for five-year terms, and may be removed only for “neglect of duty or malfeasance in office, but for no other cause.” Currently, three of the five NLRB seats are held by Republicans, so even after President Biden fills the one open seat with a Democrat, there will be a Republican majority. President Biden will not have the opportunity to replace one of the Republican members until the end of August 2021. Until then, the NLRB is unlikely to issue decisions or regulations that are as pro-union as the new administration appears to desire.
The general counsel is also appointed by the president with the advice and consent of the Senate for a four-year term, but the Act is silent about the circumstances under which he or she may be removed before the end of that term. The term of Peter Robb, the general counsel at the time of the inauguration, was set to expire in the middle of November 2021. Mr. Robb had been sharply criticized by organized labor for pursuing matters that, in the view of his critics, were designed to undermine unions, not pursuing matters that would help unions, and allowing significant attrition of the agency’s workforce. After Mr. Robb declined President Biden’s request that he resign, the president fired Mr. Robb, resulting in Deputy General Counsel Alice B. Stock becoming the acting general counsel as of January 21, 2021. President Biden is expected to move swiftly to nominate a successor.
All of this sounds like inside-the-beltway political machinations, but it is likely to have an immediate impact on employers around the country, both by increasing the number of cases the agency brings against employers and by getting cases more quickly into the pipeline so that the Democratic NLRB majority that is anticipated by fall 2021 can act more quickly to reverse some decisions of the Trump-era NLRB. These decisions will likely include the scope of potential bargaining units, the responsibilities of employers to provide information to unions, access of union organizers to employer premises and property, employer policies concerning employee misconduct and confidential information, the scope of concerted activity protected under the Act, and remedies for unfair labor practices, among other areas.
Employers, therefore, may find themselves in a difficult situation if they encounter circumstances covered by NLRB decisions of the past four years. The law as it stands may allow certain activity, but an employer that acts in conformity with that precedent may well end up becoming the test case brought by the new general counsel to attempt to overturn that very precedent. Employers that have unionized workforces should prepare for them to be newly emboldened and potentially more active. Employers that have never faced union activity should take some time now to become familiar with the basic rules governing concerted activity among employees, union organizing campaigns, and collective bargaining so they do not make easily avoidable mistakes when and if issues involving the NLRA arise in their workplaces.
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