“From an employers perspective, we are facing a very, very challenging time – to be honest, even more difficult than under the Obama administration,” said Michael Lotito, attorney who represents companies at the Littler Mendelson law firm. “We’re not dealing with newbies. We have people who know what they want to achieve ”and“ who have been instructed what to do ”.
Some analysts say the agency’s anticipated decisions could even serve as a backdoor for the passage of provisions contained in the Democrats’ Right to Organize Act, the filibuster-stalled law that allows workers to unions Joining the United States in possibly the most important overhaul would greatly expand labor law since the 1940s.
Lotito predicts employers will go to court against the agency for acting outside of their jurisdiction. “This board will test the envelope significantly,” he said. “The appointment practice based on board decisions will explode.”
The NLRB, which is responsible for implementing the National Labor Relations Act, is an independent agency that operates outside the control of the White House. But Biden – a self-proclaimed union man who has made organized labor a focus of his campaign – wasted no time installing pro-union officers to implement his plan to revive declining union membership.
“That is an indication of the importance the NLRB would play in its administration,” said Ifedapo Adeleye, a professor at Georgetown University. “It’s a very big signal for a change of direction.”
In the week of his inauguration, Biden ousted two Trump-era NLRB attorneys – the first time a president had wielded that power in more than 70 years – and appointed Democrat Lauren McFerran as chairperson. He nominated Obama alum Jennifer Abruzzo as General Counsel the following month, and shortly thereafter two other Democratic members.
All of Biden’s nominees are former union attorneys who have represented SEIU and the Communications Workers of America. Abruzzo was also Deputy General Counsel during President Barack Obama’s tenure, a role in which she helped oversee decisions made A precedent estimated to be more than 4,500 years old was destroyed by a study.
Although the NLRB cannot make legislative changes, it can make decisions that affect the implementation of the law. Many unions have was careful about bringing cases to the board in the past few years for fear of the consequences of a Republican majority. But with kind faces in power, they are likely to resume.
“They have allies,” said Sean Redmond, executive director of labor policy for the US Chamber of Commerce. “From their point of view, there isn’t nearly as much to fear.”
The NLRB declined to comment on this story.
Abruzzo has sent a memo in August, where she set out her priorities for the next few years by directing regional offices to hotlines for special cases. As the agency’s chief police officer, she has a strong hand in deciding which cases are to be brought before the board.
“The General Counsel’s 10-page memorandum on the matter was breathtaking,” said Lotito. “It’s almost like redesigning labor law.”
Taken together, the issues she outlined represent a broad effort to undo the employer-friendly efforts of the Trump era and restore the balance of power to workers.
At the top of the list is what the Abruzzo refer to in their memo as “employee status” or cases involving independent contractors. the PRO Act would extend collective bargaining rights to gig workers by applying what is known as the ABC test – a three-tier set of standards employers must meet in order to qualify an employee as an independent contractor – to qualify them as an employee under the NLRA define. Experts say the NLRB will likely use its decisions to involve such workers in a similar way that could affect gig economy giants like Lyft and Uber.
The Trump board of directors took “an overly narrow approach to defining an independent contractor who is inconsistent with both common law and the objectives of the law.” McFerran told POLITICO in June. “I definitely think that the law as it is now written should be read correctly in a variety of ways.”
“The way gig economy companies work will fundamentally change,” said Dan Altchek, employer representative at the law firm Saul Ewing Arnstein & Lehr. “The business models will not work the way they exist.”
Abruzzo also asked the regional offices to submit cases dealing with sheltered activities: measures that workers can take without fear of retaliation from their employer. The subject has already attracted attention; in August the board of directors heard a case Google violated the National Labor Relations Act when several employees were laid off who circulated a petition calling on the company not to do business with the ICE immigration service, among other things. That same month, an NLRB official filed a complaint against Home Depot alleging it broke the law by punishing an employee who wore a Black Lives Matter shirt.
Under President Donald Trump, the NLRB has “very narrowly defined the scope of protected activity and restricted the channels that employees can use for such activities,” McFerran said in June. “The law is intended to be read much more broadly in its reporting and to fully protect the ability of workers to come together and represent themselves.”
Abruzzo also urged regional directors to submit all cases involving “Employee Handbook Rules” that employers interpret as a return to an Obama-era tendency to review these documents for potential NLRA violations.
During the Obama administration, regional directors “went to the staff handbook and scoured the handbook … and used that as an excuse to take some kind of enforcement action,” said Redmond of the Chamber of Commerce. “We can expect to see it again.”
One of the most important priorities for the board of directors are the so-called Gissel negotiation assignments. The board ruled in 1969 that if an employer is found to be engaged in labor practices that prevent free and fair elections – in this case Gissel Packing – the agency can instruct the employer to recognize the union. Abruzzo instructed regional offices to respond in all cases where a scourge. is sought to seek advice Negotiation order.
The PRO Act would also allow workers to form a union by signing authorization cards indicating that the worker wishes to be represented by a union.
However, experts say there are significant limits to the NLRB’s power as it cannot change legal laws and all of its decisions could be overturned by the nearest Republican majority.
“You cannot reverse laws on the right to work; You cannot reverse secondary boycott laws, ”said Wilma Liebman, who was chairwoman of the NLRB under Obama. “So many of the things that the PRO Act requires are completely beyond the board of directors’ ability.”
If Democrats hope to permanently change U.S. labor law, they will likely have to pass the PRO Act.
The NLRB is “not a substitute for legislative changes,” said Rep. Andy Levin (D-Mich.), A key member of the House Education and Labor Committee. “The back and forth does not lead to permanent change.”