Vice President, Labor Policy
August 31, 2021
After approximately four years with a Republican majority, the National Labor Relations Board (NLRB) on August 27 added a new member, David Prouty, whose addition to the Board changed control of it to a 3-2 Democratic majority.
Forming that majority, Prouty joins Lauren McFerran and Gwynne Wilcox, the latter of whom assumed a vacant seat in late July following her confirmation by the Senate, and he replaces outgoing Republican William Emmanuel, whose term expired. The remaining two Republicans are John Ring and Marvin Kaplan. In addition, the new Democratic majority is complemented by a new General Counsel, Jennifer Abruzzo, who also took office in July.
As this blog has noted previously, the Republican majority that existed for most of the Trump administration worked assiduously to mitigate the deleterious effects of the NLRB’s activities during the Obama era—and there were a lot. In fact, the Board unleashed so many harmful decisions that they filled a 174-page report highlighting many of them, and one prominent law firm estimated in 2016 that the Board had overturned over 4,500 cumulative years of precedent in its zealous effort to rewrite labor law.
A central feature of the NLRB’s approach during the Obama administration was its lopsided, union-friendly interpretation of the law in order to facilitate organizing efforts. The backgrounds of the two most recent appointees would seem to suggest a return to that approach given that each of them come from labor unions themselves. Whether or not that presents a conflict of interest may be worth a separate discussion, but in any event the new Democratic majority can safely be assumed to resume where their erstwhile colleagues left off.
What that means in terms of exact policy shifts remains to be seen, of course, but one can safely assume that the criticism levied by the current chairman, Lauren McFerran, in her dissents over the last four years offer a hint of where she, at least, thinks the Board should change course. To put it simply, any policy reversal—or, perhaps more accurately, restoration—achieved by the Republican-led Board will be ripe for a “counter reversal,” so to speak.
For one thing, employers can expect a renewed emphasis on employees’ rights under Section 7 of the National Labor Relations Act (NLRA), which protects so-called concerted activity among employees. An expansive reading of that section ensnared many an employer under the Obama-era NLRB, and the new general counsel seems poised to follow suit.
She also appears interested in teeing up a case to overturn the Board’s 2019 SuperShuttle decision that restored a rational test for determining whether an individual is an independent contractor rather than an employee, and one might expect the Board to declare that alleged misclassification is an unfair labor practice in its own right.
Other changes will likely include an attempt to return to the expansive joint employer standard under the Board’s 2015 Browning-Ferris decision, which would require a regulatory rulemaking, an effort to force employers to allow union organizers greater access to their workplaces and email systems, and a renewed emphasis on what is—or isn’t—allowed when it comes to employers’ workplace policies.
All of those issues and more were the focus of the NLRB’s activist agenda before, and there is no reason to think they won’t be now. Employers can rest assured that the new majority will try to conjure up new ideas to harass employers for good measure.