The Dems are out, the Republicans are in the White House in January, so now what for labor law?
We all know that labor law under the National Labor Relations Act is a vacillating affair where tomorrow’s case decision suddenly upends years (and sometimes decades) or prior precedent, to the cheers of either labor or management – and rarely both.
The NLRB consists of five members nominated by the president and confirmed by the senate for staggered five-year terms (one member expires every year).
Democratic presidents ensure through nominations that the Board’s majority favors labor; and Republican presidents nominate to ensure a management-friendly majority. It has always been that way, with the vague and ambiguous terms of the NLRA interpreted along party and philosophical lines.
Legal interpretation of the NLRA is no easy task. For example, Section 8(a)(1) of the Act makes it illegal for an employer to “interfere with, restrain, or coerce employees in the exercise of their rights.” And interference, restraint or coercion are not black-and-white, clear-cut concepts. My perceptions will likely differ from yours. There’s a lot of that “gray area” within the Act.
Thus, interpretation of the Act by changing Boards results in “policy oscillation,” where perceptions and rulings reflect the politics of the Board’s majority.
So as the Biden administration exits in January and the Trump regime takes over, what does that mean for labor law over the next four years?
Currently, the Board looks like this with four of five positions filled and one vacancy:
Chairman, Lauren McFerran D July 2020 to December 2024
Gwynne Wilcox D September 2023 to August 2028
Marvin Kaplan R July 2020 to August 2025
David Prouty D July 2021 to August 2026
McFerran’s term expires on December 16, 2024. President Biden nominated her for another term earlier this year, and her confirmation rests with the Senate. Biden also appointed Joshua Ditelberg, a Republican labor lawyer, to fill the vacant seat on the Board.
Whether the Senate will confirm either of these before Biden exits on January 20, 2025 is anybody’s guess.
If the Senate fails to confirm Biden’s appointees by January 20, Trump will nominate two Republicans and the Board will quickly form a Republican majority.
However, If McFerran is confirmed by the Senate the Board will retain a Democratic majority through at least August of 2026 when David Prouty’s term expires.
But even if the Senate confirms Democrat McFerran, Trump will terminate NLRB General Counsel Jennifer Abruzzo’s employment soon after taking office, installing in her place a management-friendly, Republican general counsel.
The Board’s general counsel wields great influence, advising the NLRB regional offices what they should focus on, how the Act should be interpreted, and what cases should be brought and prosecuted. The general counsel has discretion to decide whether a set of facts violates the law or not and sets the political and philosophical tone of the agency.
So even if the Senate confirms McFerran and preserves a Democratic Board majority for over two years, the general counsel will create a new Board culture and direction designed to roll back employee and union protections gained under GC Abruzzo’s aggressive pro-employee and union leadership to reflect the direction of the new administration.
What things might be changing under the new administration? Here are some good guesses:
The Board will look for a case to reverse “Cemex,” which allowed the Board to order recognition of a union without an election if the company committed a ULP in the run-up to the election.
The Board will reverse “Stericycle” and return to a management-friendly analysis for determining the legality of employee handbooks and other facially neutral employment policies.
The new Board will reverse a recent Board decision that outlawed “captive audience meetings” during organizing drives.
Abruzzo’s memoranda casting doubt on the legality of severance agreements, stay agreements and noncompete agreements will be rescinded.
The Board’s union election rules will be amended to eliminate “Quickie Election” provisions that shortened the time between petition and election.
Protected concerted activity (PCA) will be more narrowly interpreted to clarify that individual employee acts are not protected by the Act.
The Board will return to the prior management-friendly joint employer interpretation that requires direct exercise of control for joint employment.
Regardless of where your organization fits along the political spectrum, the whiplash effects inherent in life under the NLRA are challenging. Shouldn’t your management team be well-versed in all of this? A well-trained, effective management team that knows how to handle change is crucial for success. Please reach out to Gary Kleckner, and see what MARC can do for you.
Gary Kleckner, Vice President
216-973-7323
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