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New NLRB Chair Gives Roadmap for Possible Actions Under Biden

Feb. 24, 2021, 9:51 PM

National Labor Relations Board Chairwoman Lauren McFerran signaled she would aggressively seek to reverse Trump-era policies once Democrats take control of the five-seat board, sharply criticizing the Republican majority’s decisions.

In a rare public appearance at a virtual discussion hosted by Cornell University on Wednesday, McFerran accused the board’s GOP majority of limiting union rights under the National Labor Relations Act—and in doing so, she offered a road map for what Democrats might seek to change once they’re eligible to retake the majority this summer.

“If I had to characterize the impact of the Trump board in a nutshell, it would be to say that this board’s work has made the act smaller, both in terms of its coverage and in terms of the scope of the activity that it protects,” McFerran said.

The Republican majority has made it harder for workers to address power imbalances in the workplace, she said, adding: “That is exactly the wrong direction for the act to be moving in these perilous economic times.”

McFerran suggested she would seek to reverse the board’s 2019 SuperShuttle decision, which made it easier for companies to classify workers as independent contractors, who, unlike employees, aren’t protected by federal labor law.

She found fault with a decision in 2020 where the Republican majority said it didn’t have authority over faculty at nonprofit religious colleges, stripping workers at those institutions of their ability to unionize.

And she objected to a pair of 2019 decisions in which the board said businesses can ban workers from using company email for union purposes and also place limits on displaying pro-union paraphernalia at work.

McFerran was named NLRB chair when President Joe Biden took office last month, though she is still the board’s only Democrat and can’t override the Republican majority. Her opposition to the cases she mentioned during the virtual seminar wasn’t surprising, given her frequent dissents from Republican-majority decisions, but it showed areas where Democrats may focus attention as cases bubble up during Biden’s term.

Biden can immediately nominate a Democrat to join McFerran on the 3-1 Republican-controlled board, in effect filling a seat that has been vacant since 2018. If a nominee is advanced and confirmed by the Democratic-run Senate, Biden would then have a chance to cement control of the NLRB for Democrats with a second nomination when the term of Republican member William Emanuel expires in August.

Former Republican NLRB Chairman Philip Miscimarra also took part in Wednesday’s panel discussion, frequently pushing back against McFerran’s points. He defended the board’s ruling that Wal-Mart Stores Inc. could require workers to wear only “small, non-distracting” union buttons, saying it’s a reasonable requirement in a retail setting.

‘Understaffed’ Offices

He and McFerran clashed over a 2020 decision involving General Motors, where the board gave employers more authority to discipline or fire workers for using racist, sexist, or profane language in a union context. The case involved a Black employee who “mockingly acted a caricature of a slave” while talking to a manager.

In siding with GM, then-chairman John Ring said the board had for too long protected “obscene, racist, and sexually harassing speech not tolerated in almost any workplace today.”

Allowing such language doesn’t conflict with equal employment opportunity requirements, McFerran argued, since incendiary comments are only permitted in specific settings, meaning they wouldn’t spill over into the wider workplace.

Miscimarra praised the Republican board’s decision, citing bipartisan opposition at the EEOC to racist and sexist speech, even in a union setting.

McFerran did concur with the Republican board’s push to make decisions through rulemaking rather than case law alone—though she admitted to not liking the results of most rules issued during the Trump era—signaling that the trend could be here to stay.

In addition, McFerran expressed concern over the state of the NLRB itself, saying that agency workers, particularly in regional offices, have felt “devalued” and “disrespected” by neglect and under-staffing.

“The regions are not only the face of our agency, they are the lifeblood of our efforts to administer and enforce the act,” she said. “I don’t know anyone on either side of labor law practice who does not value tremendously the work done in our regions, and who doesn’t share my concern about understaffed or under-resourced regional offices.”

To contact the reporter on this story: 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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