Many federal agencies appear caught in a tennis match whereby interpretations of their statutory authority depend on the party in power at any given time. This has resulted in a number of situations where federal regulations repeatedly flip every time a different administration takes office. The National Labor Relations Board has been particularly active in this area, repeatedly reversing its own positions on the same labor issues. Last week, this trend continued when the agency issued regulations governing union elections that reversed positions taken during the prior administration.

These rules make two important changes that make it easier for unions to prevail in organizing efforts. First, the NLRB can issue an order blocking a union election if it discovers serious unfair labor practices prior to the scheduled vote. Under the 2020 rules, the election went forward, making legal challenges to reverse that outcome more difficult. Second, in the event that an employer voluntarily recognizes a union representing most of its workforce, the rules eliminate a mandatory period for the minority of employees to challenge recognition. The new regulations also make changes that give construction unions an easier path to organize often transitory worksites.

These rules will likely be challenged in federal court by employer interest groups. Also, in the event of change next year in the party in power, the newly constituted NLRB will undoubtedly revisit these issues and put the 2020 rules back into effect.

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