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Biden Labor Board Progress Slowed by Covid, Briefing Speed Bumps

March 24, 2022, 9:30 AM

Democrats gained majority control of the National Labor Relations Board six months ago and have yet to hand down a major precedential decision, marking a sharp contrast to the board’s swift movement at the start of the Trump administration.

The Biden NLRB has been moving at a deliberate pace, calling for comments from outside parties in five cases in which it’s considering changes to board law. The comment period for its most recent invitation for briefs, which deals with mandatory arbitration agreements, closed March 21.

The Trump board in 2017 dashed out of the gate with a series of five precedent-setting decisions less than three months after Republicans formed a majority. None of those cases were open to public briefing. The board is reconsidering two of those rulings.

The NLRB’s slow progress at the start of the Democratic majority’s control raises questions about whether it will be able to keep up with General Counsel Jennifer Abruzzo’s ambitious agenda to reorient labor law. Abruzzo targeted more than 40 Trump-era decisions for reconsideration and has advocated for broader damages and other remedies for labor law violations.

Working primarily as an adjudicative body, the NLRB interprets the National Labor Relations Act to set labor law rules in individual cases, while the general counsel’s office advocates for particular outcomes through litigation. The board also has the power to create regulations through formal notice-and-comment rulemaking.

“It always takes time for a new Board to find its footing, and there have been unique challenges in making this transition in the current pandemic environment,” NLRB Chair Lauren McFerran told Bloomberg Law in a statement.

McFerran praised the current board members for wanting “to do the business of the Board the right way.” That means allowing for public input on significant cases when helpful, and being careful that any regulatory changes have sufficient support and comply with rulemaking procedures, she said.

“All of this work takes time and resources—made more challenging by the fact that the agency is in the most difficult financial position we’ve faced in recent history,” McFerran said.

Many Obstacles

The NLRB received $274 million in annual funding in the spending bill signed into law last week, the same amount it has received since 2014.

Eight straight years of flat funding has led to staffing shortages that have impeded the board’s early progress on setting new labor law precedents, said NLRB spokeswoman Kayla Blado.

Other obstacles include the Covid-19 pandemic, which has raised administrative challenges as well as the need to address virus-related legal issues; the lingering impact of former member William Emanuel participating in cases despite alleged conflicts of interest, which has divided the board; and a large share of the board’s caseload still reflecting the priorities of Peter Robb, the prior general counsel, Blado said.

NLRB watchers echoed similar points about staffing deficits slowing the board’s work and pandemic-driven remote work extending the new majority’s learning curve.

Ongoing work to develop a new joint employer regulation and the need to bulletproof precedential rulings against legal challenges in appellate courts loaded with conservative judges are also contributing to the sluggish pace of NLRB decision-making.

“The business community will be watching for any major changes in policy or precedent forthcoming from this board and won’t be hesitant to test them in circuit court,” said Roger King, an attorney for the HR Policy Association, which lobbies for employers. “The board majority is well aware of that and will be cautious about how quickly and how far they go, particularly with the stamp that the Trump years left on the circuit courts.”

The NLRB also has two experienced Republican members who are well-versed in board procedures and will take their time writing dissents, which also factors into the time it takes to issue new precedents, King said.

Outlier Board

But some legal observers said the current NLRB majority’s pace seems slow because the board’s flurry of activity after Republican members took control in 2017 was abnormal.

“What the Trump board did was take a sledgehammer to precedent without caring what happened to other areas of board law,” said Anne Lofaso, a law professor at West Virginia University and former NLRB attorney. “It wasn’t looking to salvage over 85 years of precedent, it was looking to dismantle it.”

That GOP majority defied existing board norms, including turning then-Chair Philip Miscimarra’s dissents from previous cases into decisions, said Wilma Liebman, who led the NLRB during former President Barack Obama’s first term.

The NLRB didn’t have a Democratic majority during the Obama administration until April 2010. It issued its first set of significant decisions—including a precedent-setting ruling allowing unions to display banners at protests directed at the public—about five months later.

Yet the Obama board’s progress was likely slowed by the need to deal with the fallout of the U.S. Supreme Court’s 2010 ruling in New Process Steel v. NLRB, which invalidated roughly 600 rulings that were issued after the board dropped to two members in 2008.

Steady Then Surging?

Liebman said she expects the NLRB to issue a steady stream of new precedents once they’re ready, with a surge likely as Republican member John Ring’s Dec. 16 departure from the board approaches.

The clearest indicator of what’s on the way comes from the five potentially precedent-setting cases for which the board received public comments:

  • Thryv, which deals with expanding the board’s make-whole remedies to include consequential damages, due Jan. 10;
  • American Steel Construction, which involves the legal standard for determining appropriate bargaining units, due Jan. 21;
  • Atlanta Opera, which concerns the test for employment status, due Feb. 10;
  • Stericycle, which addresses the framework for assessing work rules and handbook policies, due March 7; and
  • Ralphs Grocery, which focuses on legal issues related to mandatory arbitration agreements, due March 21.

“We’re going to see decisions coming down at a decent pace that balances need for thoughtful consideration of legal issues with importance of moving as expeditiously as possible,” said Julie Gutman Dickinson, a union-side lawyer with Bush Gottlieb and former NLRB attorney.

Gutman said she’s not worried about the NLRB keeping up with Abruzzo’s agenda. But there are signs that the general counsel is out ahead of the board.

A few weeks after the board received outside briefs to aid its consideration of consequential damages, regional agency officials under Abruzzo’s management began announcing that they’d obtained that new type of remedy in settlements with employers.

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editor responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com, Melissa B. Robinson at mrobinson@bloomberglaw.com