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Biden Can’t Take Full Control Over NLRB Until Personnel Changes

Nov. 7, 2020, 6:04 PM

Joe Biden’s victory creates the possibility for sweeping changes to federal labor law—though not immediately, because Republicans will control the National Labor Relations Board for much of the coming year.

The continuation of the GOP majority on the labor board until at least August 2021 puts its sole Democratic member, Lauren McFerran, in the position of trying to delay its attempts to further tilt federal labor law to management’s benefit. The five-seat panel has one vacancy, for a Democratic seat.

The Biden administration will be able to name McFerran—or a second Democratic member, should a future nominee win Senate confirmation—to replace Republican Chairman John Ring as board chair. But it’s unclear how much a Democratic board head will unilaterally shake things up. The National Labor Relations Act makes the board chairperson a “first among equals,” without special statutory powers to override the majority, NLRB watchers said, though there are other ways to slow the Republicans.

The GOP majority will retain control of the board, which sets labor law policy through case decisions and administrative rulemaking, until sometime after Republican member William Emanuel’s term expires at the end of August—at the earliest.

But the future of the NLRB will remain in limbo for as long as the Senate remains up for grabs. The 100-member chamber was split with each side controlling 48 seats. Two of the remaining vacancies are in Georgia, where a candidate must garner at least 50 percent of the vote to avoid a runoff.

One additional contest will be needed to fill the remaining two years on retired Republican Johnny Isakson’s term as neither Republican Kelly Loeffler nor Democrat Raphael Warnock cleared that threshold. A second runoff is needed to decide the race between incumbent Republican David Perdue and Democratic challenger Jon Ossoff.

A race in Alaska, where Republican Dan Sullivan leads by a wide margin, and one in North Carolina—where incumbent Thom Tillis leads by a narrow one—have yet to be called.

The Biden administration’s ability to install enough nominees to flip partisan control of the board likely hinges on the Democrats winning both of Georgia those races.

Failing to Do So

If Republicans keep the Senate and stonewall the Biden administration, it may mean no Democratic majority until the board suffers a crippling loss of quorum in late 2022. Or the GOP majority could find common ground with the administration so it can fill seats in the normal order, meaning a Democratic majority would be in place by the fall.

The prospects for the NLRB—and federal labor law more broadly—will look different if the Senate splits 50/50, leaving Democratic Vice President Kamala Harris holding the tie-breaking vote. Beyond the ability to create a new Democratic board majority, control of the Senate along with the White House and House of Representatives would give the party the power to overhaul the NLRA. That’s a prospect that management attorneys fear, putting more pressure on the Republican NLRB to secure its legacy.

“It’s the Black Tuesday trifecta from the management-employment perspective,” said Roger King, senior labor and employment counsel at the HR Policy Association, which represents human resource chiefs at some of the country’s largest employers.

Meanwhile, Republican Peter Robb can remain NLRB general counsel until his term ends in November. The general counsel acts as the agency’s top prosecutor in unfair-labor-practice cases, selecting which allegations have merit and setting how cases are argued.

The NLRB’s status at the start of the Biden administration echoes President Donald Trump’s first year in office, when the board majority and general counsel weren’t Republican until September and November of that year, respectively. The board didn’t hand down any major, precedent-setting decisions before that change.

A 2021 wildcard is whether the Biden administration will try to remove Robb before his term ends. While the NLRA says that board members can be removed only for “neglect of duty or malfeasance in office,” the law puts no apparent restrictions on sacking the general counsel.

“It’s more than arguable that the GC could be ousted,” said William Gould, a Stanford University law professor who led the NLRB during the Clinton administration.

Remaining Republican Agenda

Since late 2017, the NLRB has managed to flip the Obama-era precedents that drew the most concern from the employer community, either through case rulings or its unusually aggressive use of rulemaking, lawyers and former board members said.

Nevertheless, the GOP majority still has outstanding issues on its agenda. That includes potentially restricting unions’ use of “Scabby the Rat” and other symbols at labor protests, eliminating a bar against elections to oust unions during the life of collective bargaining agreements, and finalizing a regulation that would eliminate unionization rights for student assistants at private universities.

That leaves it to McFerran, and possibly a second Democratic member, to maximize their dissent-writing time as a means to delay the majority.

“An individual board member can slow down the decision-issuing process,” said Marshall Babson, a former NLRB member who represents employers for Seyfarth Shaw. “But the board majority ultimately has the authority to deal with a situation where it becomes apparent that member is not willing to act for purposes of delay.”

Attempts at delay could be blunted by the speedy case-processing procedures that Ring put in place, said Michael Lotito, co-leader of Littler Mendelson’s Workplace Policy Institute.

But according to Mark Gaston Pearce, a Democrat who served as NLRB chairman from 2011 to 2017, the board chair has authority to readjust priorities, change internal deadlines, and reassign his or her staff to new issues. That could especially threaten rules the Republican majority is currently developing.

“The chair may decide that his or her staff is not going to be dedicated to the rulemaking process, because he or she has made the determination that more priority should be devoted toward another aspect of promoting or enforcing the act,” Pearce said. “Resources can get redirected.”

Under that scenario, the Republican majority could still insist on following through with the rule in question. But, Pearce said, a Democratic chair could demand more time to review the matter, effectively delaying a decision.

“They can make a determination that certain things are going to get tabled,” he said.

To contact the reporters on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com; Ian Kullgren in Washington at ikullgren@bloombergindustry.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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