Immediately after taking office, President Biden fired incumbent NLRB general counsel Peter Robb, a move without precedent since the establishment of the Independent Office of General Counsel in the NLRB in 1947.
In July 2021, President Biden nominated Jennifer Abruzzo to serve as general counsel of the NLRB. In response, the ABC-led Coalition for a Democratic Workplace sent a letter opposing her nomination. Abruzzo was confirmed, and since then, she has worked to overturn numerous and significant NLRB precedent.
In August 2021, the Democrats regained their majority on the NLRB. Prior to the new Democratic members being confirmed, the CDW sent a letter in July to the Senate Health, Education, Labor and Pensions Committee to oppose the nominations of Gwynne Wilcox and David Prouty to serve as members of the NLRB.
The NLRB’s Democratic majority has sought to overturn many board labor policies adopted during the Trump administration.
For example, the NLRB is trying to change the employee classification standard under the National Labor Relations Act. In December 2021, the NLRB invited amicus briefs in The Atlanta Opera asking if the NLRB should revert back to the Obama-era standard, which severely undervalued the significance of a worker’s entrepreneurial opportunity for economic gain when determining if the worker is an employee or independent contractor. ABC joined the CDW in filing an amicus brief, which highlighted the NLRB’s two failed attempts to rewrite the standard for determining independent contractor status under the NLRA.
In January 2022, ABC also joined an amicus brief in the NLRB’s Stericycle case, opposing the NLRB’s announced plan to overturn the Trump-era NLRB’s 2017 decision in Boeing, Inc., dealing with the legality of many facially neutral employer handbook provisions. The NLRB is arguing such policies infringe on workers’ rights to “protected, concerted” employee activities. A decision in this and other cases are expected soon from the NLRB, which could fundamentally impact the labor policies of many employers in the construction industry.
Additionally, on April 7, NLRB General Counsel Abruzzo issued a memo to all NLRB field offices declaring that employers’ holding mandatory meetings with workers to discuss unionization violates a worker’s “right to not listen to such speech,” essentially eliminating employers’ free speech rights during union organizing campaigns in the workplace and exposing workers to potential coercion and intimidation. This is despite the fact that the NLRB has protected employer speech rights for 74 years and the Supreme Court has repeatedly recognized these meetings as an extension of employers’ First Amendment rights.
The NLRB is also attempting to return to the Obama-era joint employer standard. On Sept. 7, the NLRB issued a notice of proposed rulemaking rescinding the Trump-era policy, which clarified that joint employer status would only be imposed on an employer if they exercise “substantial direct and immediate control” over the terms and conditions of employment of another employer’s workers. (See “Joint Employer” priority issue brief for further details.)
On Nov. 4, the NLRB issued another notice of proposed rulemaking to alter three aspects of the board’s representation election procedures. The new rule would rescind an ABC-supported 2020 final rule issued by the Trump-era NLRB. The proposal would: halt all representation or decertification elections if an unfair labor practice charge is filed against one of the parties until that charge is resolved, allowing unions to delay indefinitely efforts by workers to remove the union from the workplace; bar election petitions if an employer voluntarily recognizes a union for a set period of time, eliminating workers’ opportunity to request a secret ballot election to ensure the union actually has majority support; and eliminate the requirement specific to construction unions that the union provide and maintain proof of majority support in order to transition a pre-hire agreement to a more traditional collective bargaining agreement, providing unions targeting construction workplaces with the ability to become exclusive bargaining representatives for the workers without any requirement to prove they have the support of the workers.
On Nov. 22, the CDW requested that the NLRB issue a 30-day extension to the comment period for the proposed rulemaking to ensure the regulated community has an opportunity to weigh in on the potential impact the proposed changes could have on business operations, the workforce and the economy generally. On Nov. 29, the NLRB announced it is extending the comment deadline from Jan. 3 to Feb. 2, 2023.
ABC filed comments opposing the proposed rule.
On Nov. 8, ABC joined the CDW and six other employer organizations in filing an amicus brief before the Supreme Court to request that the court reverse the judgment of the Washington Supreme Court in Glacier Northwest, Inc v. International Brotherhood of Teamsters. The Washington Supreme Court’s decision stated that the NLRB preempts state tort suits, allowing unions and their supporters to intentionally destroy an employer’s property while claiming to be engaged in protected concerted activity.
The NLRB must serve as a neutral arbiter of federal labor law. ABC supports balanced policies that reflect the NLRB’s original mission to fairly interpret and enforce federal labor law. Unfortunately, while the Trump administration scaled back some of the most controversial policies under the Obama-era NLRB, the Biden administration has pledged to return to the Obama-era tactics.