Changing Administrations, Changing Labor Policies, Part II: The 10 Most Prevalent Issues in Labor Law

Part one of this two-part series covered changes to U.S. labor law policies that employers can expect to see with the new administration. Part two is a brief summary of the most prevalent issues in current labor law and their likely disposition under a new Biden administration and National Labor Relations Board (NLRB).

1. Board Jurisdiction

The Board itself will act to reassert jurisdiction over student/employees at colleges and universities. While this is an issue that has changed several times, the current decisional authority is from 2016 (Columbia University) and finds these students to be employees with organizing rights; but the Trump Board has proposed a rule that would find them to be primarily students without organizing rights. Assuming the current Board does not finalize that rule, the Biden Board could withdraw it and continue to follow the Columbia University decision or, for the sake of greater permanence, could also take up its own rulemaking on this issue. It is also likely to actively assert jurisdiction over charter schools. While it would like to increase jurisdiction over religious institutions, it will likely leave that alone in light of a number of problematic court cases. Similarly, it will avoid asserting jurisdiction over student athletes for political reasons. There is a desire to exert jurisdiction in the home health care field and to apply the National Labor Relations Act (NLRA) to agricultural workers. In some instances, the former would require legislation, and in all instances the latter would. Jurisdictional expansion would likely be viewed as “innocuous” legislation and could be part of a legislative “reform” package.

2. “Employee” Definition

This quasi-jurisdictional issue is one of great significance. A new Board will act to alter the “independent contractor” policy in a way designed to bring workers in the “gig economy” under the Board’s jurisdiction. Given the significance of this economic sector the new Board may proceed by rulemaking. Congress may not want to touch this issue given how similar legislation backfired in California. In addition, for a host of policy reasons there is a desire to either extend the NLRA to cover supervisors, or to significantly narrow the definition of supervisor. The former would require legislation, the latter could be accomplished to some degree by Board decision.

3. “Employer” Definition

Democrats want to undo the Republican Board’s joint-employer rule. For the Board to comprehensively do so would likely require a new rulemaking—a very heavy lift. The Board could, however, chip away at the rule. For example, appropriate cases could find joint and several liability. The policy could be changed by legislation, however, given the strength of the management-side lobbying on this issue Congress may want to steer clear of the joint-employer quagmire.

4. Penalties and Remedies

There is a strong push to impose compensatory and even punitive penalties for labor law violations. The current statute is strictly a remedial one, so while the Board could nibble at the penalty issue around the edges, any substantive change would require legislation. Current legislative proposals include the imposition of monetary penalties, double or triple backpay awards, tort-like damage claims, increased use of bargaining orders, federal contract debarment, attorneys’ fee awards, individual liability for officers and executives, and criminal penalties. If there is a labor law reform package, look for it to contain, at a minimum, provisions for monetary penalties and contract debarment.

In addition, the Board’s GC already has broad discretionary authority to seek interim injunctive relief in unfair labor practice (ULP) cases. Expect a new Democratic GC to make significantly increased usage of this authority. The PRO Act contains provisions making Board orders self-executing meaning they would have to be complied with even while an appeal was pending in the circuit court. This precise change would require legislation, but a more aggressive use of already existing injunctive powers might have the same practical effect. Lastly, the PRO Act would create a private right to sue for NLRA violations that would operate somewhat like the Equal Employment Opportunity Commission’s procedures. This change is likely a legislative bridge too far, particularly in light of the Board’s efficiency and track record in handling ULP litigation.

Lastly, unions have also always favored binding interest arbitration (i.e., a “neutral” arbitrator decides on the terms for the collective bargaining agreement when the parties cannot reach voluntary agreement), particularly for first contracts or in the case of alleged bad faith bargaining. However, the Board does not have authority to compel this in either situation. The prevailing view in Congress appears to remain that the parties should make their own contracts although this position has “softened” somewhat in the two noted circumstances. Thus, legislation here is possible, but still probably unlikely.

5. Representation Case Substance

Most likely by decision, but perhaps by rulemaking, look for the new Board to restore Specialty Healthcare’s “micro-unit” rubric. As noted above, and again by decision, look for the new Board to also narrow the definition of “supervisor.” Additionally, it appears very likely that a new Board will, by decision, outlaw “captive audience meetings” by simply finding them to be inherently coercive. In the event of a union election loss expect the Objections bar to be significantly lower, and employer speech subject to greater scrutiny and control. The new Board may want to reinstate the right of employees to use company e-mail systems for campaign purposes, although the actual benefit of the policy for organizing purposes may not be worth the court fight over the issue that is bound to ensue.

Organized labor still wants mandatory card check recognition. The Board cannot do this on its own, although it can make the option of card check easier and more attractive. It certainly will do so. Only Congress could make it mandatory; and, given the experience with EFCA, Congress likely sees this initiative as radioactive. Do not expect the demise of the secret ballot. Finally, the Biden administration will seek, once again, to modify the “persuader rule.” Since recent attempts to do so by rulemaking failed, a legislative change to the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) is certainly a possibility.

6. Representation Case Procedure

Both the Obama and Trump Boards have beaten many of the issues involving the “ambush rules” to death. In many instances they did not yield the electoral edge to unions that many believed would occur, and in other instances employers have merely adapted to the change. The new Board may not do much to replow old ground. It will, however, act to maintain expanded Excelsior requirements and a compressed election schedule. Given Chair McFerran’s comment in a recent Board decision that it is time for the Board to reconsider its preference for in-person on-site voting (she feels voting on the employer’s property can be coercive and risk employee free choice), it will also likely liberalize mail balloting policy, consider telephonic voting and, assuming there is no longer any contrary budget rider, move toward adopting electronic voting.

7. Right-to-Work

The current version of the PRO Act would eliminate the ability for states to have right-to-work laws. The Board has no authority to do this, and Congress is unlikely to touch this. Look, however, for organized labor to attempt to roll back such legislation in some states.

8. Class Action Waivers

Following the Supreme Court of the United States’ decision in Epic Systems Corp. v. Lewis. In Cordúa Restaurants, Inc., it is clear the Board itself lacks authority to outlaw such provisions. However, doing so is a priority for both organized labor and the plaintiffs’ bar, so expect an effort to amend the unrelated Federal Arbitration Act in order to achieve the same result.

 

9. Economic Weaponry

By both decision and the general counsel’s charging authority, the new Board will likely make some forms of “intermittent strike” activity (i.e., repeated work stoppages, often of a short duration) legally protected. It would also like to protect economic strikers from being permanently replaced but cannot unilaterally do so because of contrary Supreme Court precedent. Chances of the Congress making this a statutory change are, at best, less than 50/50. The new Board is likely to use decision making to loosen the prohibitions on secondary boycotts. For example, putative secondary employers already lack protection if they are deemed “allies.” A new Board could modify and broaden the ally doctrine and other exceptions. The new Board may very likely use its decisional power to outlaw the “offensive” or “employer lockout” by finding it inherently destructive of employee rights.

10. Substantive ULP Changes

The current Boeing standard for evaluating the legality of employer work rules remains sufficiently subjective that employers should once again expect heightened scrutiny of their rules and policies. In a similar vein, expect a Democratic Board to be much more likely to find a significantly wider panoply of employee behavior to constitute “protected concerted activity.” While unions and a new Democratic Board would like to eliminate the Trump Board’s adoption of the “contract coverage” theory (finding unilateral action by the employer lawful if “covered by the contract”), this may prove difficult because the Trump Board’s view reflects the predominant opinion of reviewing federal courts. This doctrine is significant for purposes of contract administration since it implicates the right to take unilateral action and the existence of any midterm bargaining obligation.

Potential Game Changers

President Biden has committed to creating a cabinet-level working group with the sole focus of promoting union organizing and collective bargaining. The group is tasked with delivering “a plan to dramatically increase union density and address economic inequality.” In that vein, the Biden administration has pledged to “study” two areas that could dramatically alter U.S. labor/management relations. Both areas would most likely require legislative action. The first area of “study” would be the feasibility of some form of mandated “sectoral bargaining.” In this model bargaining would not be conducted on an employer-by-employer basis but would encompass an entire economic sector. Sectoral bargaining is a policy favorite of the most progressive wing of the Democratic party.

Equally ground-breaking is the administration’s pledge to study the feasibility of “waivers of preemption.” By design, private sector labor/management law in the United States is exclusively within the federal sphere and is thus uniform across the country. There are some, however, once again in the left wing of the Democratic party, who would like to cede this exclusive jurisdiction selectively to the states. In large measure this idea is being driven by the reality that radical labor law “reform” is simply not possible through the U.S. Congress, but could be effectuated through some state legislatures. Balkanizing labor law would be the most fundamental change ever in U.S. labor/management relations. Given a closely divided Congress the volatility of these issues may ensure that they never progress beyond the “study” stage. However, all that may depend on how effectively the Democratic left can leverage the Congress, and where it wants to apply that leverage most.