Labor Relations Law Blog

On the day he took office President Biden named Democrat and former union-side attorney Lauren McFerran as Chairman of the National Labor Relations Board’s five-member panel, replacing Republican and former management-side attorney Chairman John Ring. The Board panel decides NLRB’s cases and enacts regulations on workplace issues. As former President Trump allowed the other Democrat seat on the Board panel to remain vacant, President Biden has an immediate opportunity to nominate another Democrat to the Board. Chairman McFerran has most recently served on the Board panel with the current three Republican Members, all of whom were Trump appointees. Employers should expect the NLRB panel under Chairman McFerran’s leadership to reassess recent precedent, including limitations on employee and union rights, employer rights to enact workplace policies, workplace investigations, and procedures for union organizing. President Biden is likely already considering nominations for a replacement for current Republican Board Member William Emanuel, whose term expires in a few months. Accordingly, employers should expect a Democratic Board majority to be confirmed and seated later this year. With a Democratic majority in place, we will likely see significant change in labor law rules which could dramatically affect both union and non-union workplaces.

On a related note, on the day he took office, President Biden asked former management-side attorney Peter Robb, a Trump appointee, to step down from his position as NLRB’s General Counsel. The NLRB’s General Counsel establishes policy for day to day operations of the NLRB’s field offices nationally. General Counsel Robb took a clear interest in prosecuting labor unions on new legal theories as well as challenging NLRB standards which had developed under the Obama Administration. When approached about either resignation or termination, General Counsel Robb declined to resign. Recent reports confirm that President Biden has terminated Robb as NLRB’s General Counsel. Employers should expect that President Biden will promptly appoint a new General Counsel. The next General Counsel will likely prioritize fortifying the NLRB, which Robb actively tried to restructure and weaken, as well as to investigate and prosecute cases more quickly and aggressively. It should be expected that under the leadership of a new General Counsel the NLRB will expand interpretation of employee and labor union rights, as well as prosecutions of employers on such theories, as the Board reevaluates precedent and interprets the labor laws as issues arise in the current pandemic-stricken workplace environment.

The newly reconstituted Senate will likely soon consider the Protecting the Right to Organize Act (PRO Act), which would significantly overhaul labor law with a range of developments including card-check union organizing, expanded employer liability risks, employer reporting duties, and imposing the ABC test for independent contractors on a national basis. The legislation has already passed the House of Representatives and could gain the Senate’s support before reaching President Biden, who has already expressed support for the legislation.

Stay tuned, employers. There will be a lot happening. As things develop, unionized and non-union workplaces will be impacted by what happens. Please contact us if you wish to discuss.