OVERVIEW

The five-member National Labor Relations Board is tasked with interpreting and enforcing the National Labor Relations Act. The agency is supposed to 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.
  • Regulatory and legislative efforts that preserve balanced union election procedures by safeguarding the right of workers to make informed decisions about union representation, ensuring the ability of employers to communicate with their employees and protecting the privacy of workers and their families.
  • The traditional joint employer standard under the NLRA.

ABC OPPOSES

  • The deceptively named Protecting the Right to Organize Act (H.R. 842/S. 420), which would codify the NLRB's controversial Browning-Ferris Industries joint employer standard that has threatened our country's small and local businesses and strip workers' right to private voting and secret ballots in union elections. On March 9, 2021, H.R. 842 passed in the U.S. House of Representatives by a vote of 225 to 206. The bill is currently awaiting consideration by the U.S. Senate.
  • The NLRB’s 2014 final rule that implements “ambush”-style union representation elections. Such policies unfairly obstruct and silence employers while violating workers’ privacy and depriving them of valuable information.
  • Any legislative efforts to overturn balanced precedent or implement anti-employer policies and rulemakings.

BACKGROUND

Under the Obama administration, the NLRB issued controversial, anti-business rulemakings seeking to promote union organizing in the construction industry and elsewhere at the expense of employers and employees.

Most notably, in 2014, the NLRB finalized its controversial ambush election rule, also known as Representation-Case Procedures, which significantly changed the union representation election process by reducing the amount of time between when a union files a representation petition and an election taking place. Under the Trump administration, the NLRB issued a request for information in 2017, seeking public comment on whether the 2014 election rule should be kept as is, modified or rescinded entirely. ABC’s position was that the board should rescind the rule and return to the election procedures that were in effect and working well prior to the 2014 rule’s adoption. ABC members have found the 2014 rule’s requirements are unduly burdensome for employers, intrude on employee privacy and infringe on the rights of employers and employees to a fair pre-election process. In 2019, the Trump NLRB issued a new final rule that scaled back some of the provisions included in the Obama-era ambush election rule. However, on May 30, 2020, the U.S. District Court for the District of Columbia blocked several aspects of the NLRB’s 2019 final rule, which were scheduled to go into effect on May 31. On June 1, the NLRB announced that it would move forward with the amendments that were not affected by the court’s ruling.

In addition, under the Obama administration, the NLRB uprooted more than 30 years of precedent and issued a decision in the Browning-Ferris Industries of California case that greatly expanded joint employer liability under the NLRA to situations where a company has “indirect” control and “unexercised potential” control over the essential terms and conditions of employment of another company’s employees. The BFI standard is vague, confusing and imposes unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. In 2018, the Trump-era NLRB issued a proposed rule, which ABC supported, that would codify into regulation the pre-BFI joint employer standard under the NLRA. In 2020, the NLRB issued its long-awaited final rule on the standard for determining joint employer status, which clearly delineates and limits the types of control that would trigger joint employer status under the NLRA.

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.