Mar 01, 2017 - 12:30pm

How to Correct the Last Eight Years of NLRB Mistakes

The 115th Congress has spent much of its early attention focusing on reversing harmful Obama-era regulations and taking steps to improve the regulatory process going forward; and rightly so.  However, there is at least one agency – the National Labor Relations Board (NLRB or board) – which has had an incredibly negative impact on job creators over the last eight years but which can largely escape this Congressional regulatory rollback.  This is because the NLRB is an adjudicatory body and, with limited exceptions, makes its policy through case decisions rather than regulation. 

Over the last eight years, the board has issued hundreds of decisions, most of which benefit big labor at the expense of employers.  The more egregious cases – such Browning-Ferris (joint employer) or Specialty Healthcare (micro/fractured bargaining units) – are obvious and likely well-known to readers here.  However, there are scores of other cases which are not as well-known but which still represent radical policy shifts to longstanding board law while unfairly burdening employers at the same time.  Because these decisions don’t exist in a vacuum, but instead represent a constant layering of new and complex obligations, they often result in a “death of a thousand cuts” situation for employers. 

To discern where to start undoing some of these lesser-known – but important – policy shifts is a daunting task. Fortunately, the U.S. Chamber has released a comprehensive study that provides a roadmap for policy makers to correct these mistakes.  Entitled, The Record of the National Labor Relations Board in the Obama Administration: Reversals Ahead?, the study doesn’t just examine the high profile board activities, but conducts a thorough examination of some of the myriad other board issues which have real life impact on employers, such as:

  • The board undercutting “management rights” clauses to increase union leverage during collective bargaining;
  • The board changing the law of successorship to more often require bargaining obligations for successors before instituting new terms and conditions of employment;
  • The board’s effort to stretch the meaning of “supervisor” to expand coverage of the National Labor Relations Act;
  • The board limiting employers’ abilities to hire replacement workers in order to continue operating during a strike; and
  • Requiring employers to continue remitting employee union dues even after expiration of the collective bargaining agreement, thereby increasing union bargaining leverage.

These are just a few examples of board initiatives which are examined in Reversals Ahead?. In order to be reversed, many of these cases will require treatment by a newly-constituted NLRB, although Congress can act, as well.  Regardless of the method used, the U.S. Chamber hopes that the study will serve as a reference point for anyone looking to return balance to federal labor law.

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