labor Pro-Union Shift Expected With Labor Board Member’s Pending Exit
The National Labor Relations Board is poised to release a number of decisions in the next two weeks with the potential to significantly alter the nation’s labor doctrine in favor of unions, as Democratic board member Gywnne Wilcox’s term draws to a close later this month.
The cases, which have been fully briefed, are part of an effort NLRB General Counsel Jennifer Abruzzo outlined two years ago to overturn roughly 50 board precedents. The board has already adopted several of her desired changes to labor law, including protections for workers using profanity and limiting handbook provisions that could interfere with employees’ rights to organize.
Wilcox, a former union lawyer who has served on the board since 2021, is up for confirmation in the Senate, but lawmakers didn’t bring her renomination to a vote before the August recess. Her current term will end Aug. 27.
The board traditionally has pushed out some of its most consequential decisions in the final days of a members’ term.
The most highly anticipated case for labor law observers is one concerning Cemex Construction Materials Pacific LLC, which could overturn two separate NLRB precedents.
Abruzzo has asked the board to resurrect the Joy Silk doctrine—which would allow unions to bypass an official NLRB election with a card-check vote instead—and overturn the 1940’s Babcock & Wilcox ruling to make captive audience meetings unlawful.
In another pending case, the board also may decide the fate of the 1970 Ex-Cell-O precedent, which prohibits the NLRB from forcing companies or unions to accept provisions of a collective bargaining agreement. Overturning that decision would allow the board to levy financial remedies against companies to compensate workers for what they could’ve earned with good-faith contract negotiations.
The NLRB’s August agenda also includes finalizing regulations to expand the factors that can trigger a joint-employer finding. The rule, proposed nearly a year ago, would eliminate the stricter joint employment standard established by the Trump-era board.
Other pending cases could boost the potency of worker strikes, expand the scope of labor law protections, and make other changes that bolster worker and union power.
Wilcox can’t participate in cases after she leaves the board Aug. 27, but some of the last decisions she votes on might not publish until after her departure because of editing lags.
Tsunami or Wave?
Some NLRB watchers said the Democratic majority will issue as many precedent-setting decisions as possible at the close of Wilcox’s term. But the dynamics are different from a scenario in which a board member is leaving for good because she’s likely—though not guaranteed—to return to the agency in early September.
Senate Democratic leadership took action prior to the August recess to set Wilcox up for a possible confirmation vote soon after lawmakers return post-Labor Day. Republican Sen. Lisa Murkowski (Alaska) supported Wilcox’s nomination when she cleared the Senate Health, Education, Labor, and Pensions Committee in July, signaling potential bipartisan support in the full Senate.
“That does take some of the pressure off the board,” said Celine McNicholas, general counsel and director of policy and governmental affairs at the left-leaning Economic Policy Institute.
In addition, the prospect of Congress responding negatively to a sudden surge of precedent-setting rulings and regulations may chasten the NLRB’s Democratic majority, said G. Roger King, senior counsel at the HR Policy Association.
Lawmakers could complicate Wilcox’s confirmation, cut the agency’s budget in the next appropriations bill, or schedule oversight hearings if they see the board taking a “scorched earth” approach at the end of Wilcox’s term, he said.
But beyond any political gamesmanship, it’s unlikely that the board will roll out all of its pending precedential decisions and regulations because there are so many of them, said McNicholas, who served as special counsel and director of legislative and public affairs at the NLRB during the Obama administration.
“I wouldn’t be surprised if the board takes the time they need,” she said. “We’re all optimistic Wilcox returns in September.”
Other decisions that the board could issue within the next several weeks include:
- American Federation for Children: The general counsel urged the NLRB to overturn Electrolux, Tschiggfrie, Alstate Maintenance, and Quicken Loans to expand protections for collective action in the workplace and make it easier to prove an employer’s anti-union animus.
- Parkside Cafe: The general counsel urged the board to include protesting over social justice causes among the actions protected by federal labor law.
- Home Depot: The board is weighing whether it should overturn Apogee Retail, which allows gag orders for internal workplace investigations, and to designate social justice advocacy as a protected activity.
- Inland Waters Pollution Control: The NLRB could strike down the 1964 ruling in Hot Shoppes that permits employers, for economic reasons, to permanently replace workers on strike.
- Wendt Corp.: This case brings the 2017 Raytheon Network Centric Systemsprecedent back before the board. Raytheon allows employers to make unilateral changes to job terms after the expiration of a labor contract.
- Endurance Environmental Solutions: The board is considering overturning the 2019 MV Transportation decision, which allows employers to make changes to working conditions without negotiating when they fall within the scope of a contract provision giving management the right to act.
- Preferred Building Services: The general counsel has asked the board to overturn the nearly 75-year-old Sailors’ Union of the Pacific (Moore Dry Dock)decision in favor of a standard that would allow workers to conduct secondary boycotts. This case was remanded from the US Court of Appeals for the Ninth Circuit, which said the Trump board didn’t have enough proof that janitors assisted by a union had illegally picketed their employer’s contractor.
- Ralphs Grocery: The board will consider whether to make confidentiality requirements in workplace arbitration agreements unlawful.
The board also has regulations in the pipeline to change the requirements and procedures for union representation and decertification elections.
Even if all decisions come out before Wilcox’s term ends, the pending rulings are likely to face challenges in federal court, the EPI’s McNicholas said. And the decisions can’t change what she sees as fundamental weaknesses in the National Labor Relations Act, like the inability for the board to issue fines or enforce its own orders, she added.
The slate of pending rulings thus could have a significant impact, but won’t result in a “tectonic shift” in labor law, McNicholas said.