Working to achieve labor’s most ambitious goals, the National Labor Relations Board (NLRB) and their general counsel are disregarding decades of their own precedents, not to mention federal court rulings and the National Labor Relations Act (NLRA or Act) itself.
Regulatory overreach occurs when a government agency pushes the boundaries of the law. During the Obama administration, the National Labor Relations Board engaged in quite a bit of overreach, by one count attempting to overturn 4,559 years’ worth of precedent. The current NLRB, however, seems determined to break that record with a breathtaking regulatory rewrite of the law.
Most recently, the NLRB’s general counsel filed a brief seeking to eliminate employer free speech rights that are enshrined in case law and the National Labor Relations Act. This is a brazen attempt to prevent employers from holding staff meetings to share diverse points of view when a union is soliciting workers.
In that same brief, the general counsel argues that employers should be forced to accept "card check" certifications (this means that instead of workers voting in a secret ballot election, as is typically done, unions would simply gather cards from workers, which would be signed in public). Again ignoring long-standing precedent and the text of the Act, the general counsel wants to hit employers with federal penalties if they question the veracity of signature cards gathered by a union and order them to the bargaining table without an election. Signature cards, however, have been widely recognized by the courts and the NLRB as an inferior process of determining worker choice with regard to joining a union, and Congress has repeatedly rejected legislation that would favor card check over secret ballots.
Why are we seeing these aggressive and unprecedented moves by the general counsel? President Biden said he’d be the most pro-union president in history. Within minutes of being sworn in, he summarily fired the serving general counsel, Peter Robb, despite the fact that he had 11 months left in his Senate-confirmed term. With the example of a general counsel being fired at the whim of the president, perhaps the message was received that employers should be put in the crosshairs.
Aside from the general counsel, the new Board majority has been taking some radical steps of its own. They have requested briefs in five cases that would rewrite labor law in ways detrimental to workers and businesses.
In American Steel Construction, the NLRB wants to let unions gerrymander the units they organize. In other words, unions could create a bargaining unit reflecting little more than the number of workers who support the union. Such fractured units might not make sense for constructive collective bargaining, but they would create new dues-payers.
In Atlanta Opera, the Board wants to rewrite the standard for determining independent contractor status. Little wonder, since independent contractors aren’t eligible to unionize. This would allow unions to tap into the ranks of gig workers for the first time.
In Thryv, Inc. the Board wants to establish new monetary damages that can be assessed against employers. This is clearly an end-run around the penalty structure established by the NLRA as well as congressional intent, since Congress has repeatedly rejected efforts to legislate new penalties.
In Stericycle, the NLRB wants to reimpose subjective and impossible-to-follow standards governing workplace rules and employee handbooks. During the Obama administration, a similar effort led to ludicrous results like making it unlawful to request that employees exercise courtesy in the workplace. This may seem nonsensical, but it allowed the Board to hit employers with arbitrary penalties that could justify overturning a future election loss by unions.
In Ralphs Grocery Company, the Board wants to revisit limitations on employee arbitration agreements, despite the fact that the Supreme Court has told the NLRB that it has no authority over these agreements, which are governed by a separate statute.
This sweeping agenda is just the tip of the iceberg. The Board will re-visit many other precedents, to include a rulemaking on joint employment that will seek to make businesses liable for workplaces they don’t control and workers they don’t employ. Despite being an agency many people have never heard of, the current NLRB is proposing a radical remake of America’s workplaces.
Michael Lotito represent employers on the intersection of labor law, policy, and communications. Glenn Spencer is Senior Vice President of the Employment Policy Division at the U.S. Chamber of Commerce.