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New NLRB Majority Can Swiftly Alter Labor Law With Cases at Hand

Sept. 8, 2021, 9:47 AM

The National Labor Relations Board’s new Democratic majority can select from cases available in the agency’s pipeline to quickly reconsider Trump-era precedents, with subjects like workplace rules, employee classification, and the scope of labor law protections poised for review.

But many other NLRB precedents don’t appear to be similarly ready for review and likely will take time to percolate up to the board, according to a Bloomberg Law analysis of cases. Agency data shows that the volume of new unfair labor practice complaints dropped by 36% from fiscal year 2017 to fiscal year 2020—a period when the board and the general counsel gave employers more leeway on what they can lawfully do in the workplace, unions withdrew cases to avoid adverse rulings, and the coronavirus pandemic slowed economic activity.

The transition of partisan control at the NLRB casts a spotlight on its power to shape labor law through decisions in individual cases. Democratic members formed a board majority for the first time in more than four years after Trump appointee William Emanuel departed Aug. 27 and Biden pick David Prouty was sworn in a day later.

The pace at which the new majority rewrites board precedent will rest in large part on how aggressively it moves and its access to cases that raise salient issues, legal observers said.

“Board members aren’t judges, they’re policymakers,” said Anne Lofaso, a labor law professor at West Virginia University and former NLRB lawyer. “Because of that, they can decide how aggressive they want to be. But the board is empowered to remedy unfair labor practice cases—it can’t initiate them.”

NLRB spokeswoman Kayla Blado declined to comment.

Clean Vehicles

NLRB General Counsel Jennifer Abruzzo set forth an ambitious agenda for revamping labor law in a memo last month, targeting more than 40 decisions from the last four years for reconsideration. A handful of those precedents appear to be teed up for NLRB review via rulings from administrative law judges that went to the board, a Bloomberg Law review of cases showed.

The NLRB generally prefers to set precedent in cases that squarely present the relevant labor law issues and lack complicating facts or legal considerations, board watchers said.

A case involving a home improvement company’s social media rule, for example, seems to be that type of clean vehicle for the board to take up its 2017 decision in Boeing, which established a new framework for assessing workplace rules by evaluating the aerospace company’s restrictions on on-site recording.

An administrative law judge held Aug. 4 that West Shore Home LLC’s social media rule was lawful under the Boeing standard. The rule was the only issue the judge analyzed. Briefing to the board is due at the end of September.

Candidates for Review

Another potential vehicle for changing precedent stems from a pending case on an alleged unlawful termination at a construction company. That case raises the board’s 2019 decision in Alstate Maintenance, which narrowed what type of worker conduct is considered a group activity protected by the National Labor Relations Act.

An administrative law judge ruled last September that Morgan Corp. violated federal labor law by firing a worker for discussing wages with colleagues, distinguishing the workers’ actions from the unprotected conduct in Alstate. The general counsel’s office told the NLRB in a November brief that the termination was unlawful under Alstate, but that wouldn’t stop the board from overturning that precedent.

The NLRB review of an April administrative law judge decision involving XPO Cartage Inc. may provide an opportunity to reevaluate its Trump-era test for independent contractor status from its 2019 ruling in SuperShuttle.

The board might reconsider whether advocacy for a colleague who isn’t an employee under the NLRA gets that law’s protection, which the board rejected in Amnesty International in 2019, when it weighs an ALJ ruling last month that involves the American Federation for Children Inc.

The U.S. Court of Appeals for the D.C. Circuit recently gave the NLRB a chance to rewrite its standard for contract worker access to property owned by a third party when it struck down the legal test from its 2019 Bexar County decision and sent that case back to the board.

Announcing Possible Changes

One potential speed bump for the NLRB’s Democratic majority is whether it will adhere to general board practice on noticing parties and inviting briefing from the public when it contemplates overturning precedent.

When she was in the minority and writing dissents, Chair Lauren McFerran sharply criticized the Trump-era Republican majority for abandoning that practice in at least 10 rulings.

The standard practice of notice and briefing is most important in cases that could strike down longstanding precedents or make other major changes to board law, said Jeffrey Hirsch, a law professor at the University of North Carolina and a former NLRB attorney. Reviving Joy Silk bargaining orders after more than 50 years—which Abruzzo will likely seek—would benefit from public briefing, he said.

But McFerran would “look like less of a hypocrite” if she didn’t order briefing for cases that end up overturning precedents that the board has flip-flopped on in recent years, especially in those rulings that didn’t get briefing during the Trump era, Hirsch said.

Tick, Tock

The Democratic members also could be slowed if they don’t have cases that present the precedents they want to overturn.

They could turn to administrative rulemaking—which remains a rarely used tool at the agency despite the Trump-era board’s ambitions—or simply wait for the right cases to arrive.

Whatever mix of approaches those members end up taking, they’ll have to budget one of their most valuable resources, said Marshall Babson, a former NLRB member who represents employers at Seyfarth Shaw LLP.

“Time,” Babson said, “is so precious.”

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

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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