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 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.
  • Legal and legislative efforts to restore the joint employer standard that had been in place for more than 30 years under the NLRA.

ABC OPPOSES

  • 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 by the NLRB to overturn balanced precedent or implement anti-employer policies and rulemakings.
  • The deceptively named Protecting the Right to Organize Act, (H.R. 2474), would codify into law the controversial Browning-Ferris Industries joint-employer standard, which limits employees’ ability to choose or reject union representation through secret ballots and entirely disregards employers’ due process rights, to name a few of the nefarious provisions. On Feb. 6, 2020, H.R. 2474 passed in the U.S. House of Representatives by a vote of 224 to 194.

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 changes the union representation election process by reducing the amount of time between when a union files a representation petition and an election take 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for information in 2017, seeking public comment on whether the 2014 election rule should be kept as is, modified or rescinded entirely.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 is that the board should rescind the rule and return to the election procedures that were in effect and working well prior to the new rule’s adoption. ABC members have found the new rule’s requirements to be unduly burdensome for employers, intrusive into employee privacy and infringe on the rights of employers and employees to a fair pre-election process. On Dec. 13, 2019, the NLRB issued a new final rule that modifies the 2014 ambush election final rule, which would modify procedures for union elections and scale back provisions of the Obama-era ambush election rule. However, in March 2020, the AFL-CIO sued the NLRB to block its 2019 final election rule. On May 30, 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. The district court remanded the rest of the rule changes to the NLRB for reconsideration. While the NLRB indicated it intends to appeal the D.C Circuit’s decision, the situation remains fluid as of this writing. On April 1, 2020, the board also published a final rule making three amendments to its rules and regulations governing the filing and processing of petitions for a board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships. Due to the ongoing national emergency caused by the coronavirus, the board delayed the effective date of the rule until July 31. ABC expect unions may challenge that rule as well.

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 decision imposes unnecessary barriers to and burdens on contractor and subcontractor relationships throughout the construction industry. Under the Trump administration in 2018, the NLRB published a proposed rule that would establish an updated standard for determining joint-employer liability under the NLRA. The outcome of this rulemaking is to place in doubt the Obama-era joint employer standard, which is of considerable importance to the construction industry. On Feb. 26, 2020, the NLRB issued its long-awaited final rule on the standard for determining joint-employer status. Effective April 27, the final rule clearly delineates and limits the types of control that would be treated as creating joint-employer status under the NLRA.