Just Two NLRB Member Votes Suffice to Change Rules: Former Chair

It is a great day for employees, employers, and unions. For the first time in 11 months, the National Labor Relations Board has a quorum, enabling it to start issuing decisions. However, article after article has stated that any significant changes in precedent will need to wait for a third Republican member. This isn’t the case.

It’s true the NLRB has a long tradition of requiring three votes to reverse precedent through adjudication. I believe newly sworn-in members James Murphy and Scott Mayer will adhere to this longstanding precedent. Thankfully, the NLRB has a mechanism other than adjudication to address precedents it wants to revise: rulemaking.

Since 2011, the NLRB has issued 22 final rules. On Dec. 22, 2011, the NLRB issued a final rule revising representation case procedures with only two votes in the affirmative. While the rule was vacated, it set the tradition for rulemaking.

A two-to-one vote would suffice for rulemaking. Merely a majority vote by a quorum is justified given that rulemaking has significant safeguards set out in the Administrative Procedure Act.

Before the issuance of a final rule, the proposed rule must be published in the Federal Register stating the legal basis and the substance or terms of the proposal. Interested parties have an opportunity to be heard—typically a period of 30 to 60 days—through submission of written data, views, or arguments. The agency must respond to all substantive issues raised in the comments in the final rule and can’t make major changes without another round of notice and comment.

To ensure transparency and accountability throughout the review period, all relevant materials, including comments and relied-on data, must be available to the public. And the final rule is prospective only, giving interested parties an opportunity to implement the changes without running afoul of the law.

Even then, rules are subject to judicial and congressional review. A regulated party may challenge the final rule in court to ensure the agency stayed within its statutory authority, followed required procedures, and gave rational explanations.

Congress has 60 days to disapprove the final rule through a joint resolution of disapproval. If the resolution passes, the rule is nullified and the agency can’t reissue a substantially similar rule without explicit new statutory authority.

In contrast, NLRB policy changes through adjudication rarely seek public comment, are almost always retroactive, and don’t address every substantive issue raised by interested parties.

Additionally, NLRB decisions provide no notice and limited transparency. Given the difference between adjudication and rulemaking, the NLRB’s three-member tradition related to adjudication is logical and should be continued, but the three-member tradition for rule-making is misplaced.

Mayer and Murphy should look closely at what precedent should be addressed through rulemaking. One area ripe for consideration: representation election rules.

It’s time to clarify an employer’s obligations when presented with signature cards indicating most employees in an appropriate unit seek unionization. It’s also time to again allow employers to hold mandatory meetings on unionization and collective bargaining.

A similar opportunity exists with respect to independent-contractor status, a substantive issue the NLRB has long handled through adjudication rather than rulemaking. Since the US Supreme Court’s 1968 decision in NLRB v. United Insurance Co. of America, the NLRB has applied the common-law agency test to determine whether workers are employees or independent contractors under the National Labor Relations Act.

The NLRB’s interpretation of that test, however, has shifted with changes in its composition—from FedEx Home Delivery (2014) to SuperShuttle DFW (2019) to Atlanta Opera (2023)—creating uncertainty for employers, workers, and unions.

The Department of Labor’s 2024 rule under the Fair Labor Standards Act demonstrates that rulemaking can effectively bring consistency and transparency to such classification issues. Given the significance of this question across industries, the NLRB should likewise consider employing rulemaking to provide greater clarity and stability in this area of law.

The NLRB must use all the tools available to promulgate sound labor policy. But it shouldn’t act illogically to limit itself.

US workers, unions, and employers have waited long enough for the NLRB to get back to adjudication strength. They shouldn’t have to wait for a fourth or fifth member to make it through lengthy nominations and confirmations before addressing unconstitutional and unsupported labor policy.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Marvin Kaplan is a principal in the New York City office of Jackson Lewis and former chairman of the National Labor Relations Board.

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