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Waiting on the World to Change – The NLRB is Poised to Reverse or Modify Board Law

Insight
April 14, 2022
Waiting on the World to Change – The NLRB is Poised to Reverse or Modify Board Law Background Image
Insight
April 14, 2022

Proponents of organized labor were presumably pleased when Joe Biden was elected to be the 46th President of the United States, and with good reason. The night before the election, President Biden delivered a speech to attendees at a union hall in Pittsburgh in which he promised to be “the most pro-union president” the audience had ever seen. However, after over a year in office and relatively little labor reform to show for it — apart from a taskforce and two (at least temporarily) stalled pieces of legislation — those union hall attendees (and union advocates in general) may be wondering how much longer they’ll have to wait to see Biden’s grand promise realized. The answer: likely not long given that the political makeup of the National Labor Relations Board (“NLRB” or the “Board”) shifted from a Republican-appointed majority to a Democratic-appointed majority in the fall of 2021.

In light of the Board’s newly minted majority and the congressional gridlock that has (at least to date) largely stymied Biden’s legislative efforts at traditional labor reform, we expect that NLRB decisional law will be the means through which the Biden administration’s goals with respect to labor reforms are realized.

In line with that expectation, since the fall, the Board has been soliciting briefing at an unprecedented rate. Many commentators believe that, when the Board solicits briefs on a particular issue, the Board is signaling its intent to reverse or modify existing NLRB precedent. If the commentators’ beliefs prove true, that means that the Board is poised to potentially reverse or modify existing NLRB case law on the following issues:

  1. the standard for determining an appropriate bargaining unit;
  2. the standard for determining independent contractor status;
  3. the standard for evaluating whether work rules and handbook provisions are lawful;
  4. whether confidentiality requirements in mandatory arbitration agreements are lawful; and
  5. whether the Board should establish a practice of awarding a fuller accounting of consequential damages.

Given the importance of these issues, we believe that it’s especially important for employers to have at least a cursory understanding of the current state of the law and how it might change should the Board decide to depart from its precedent. To that end, we will preview each of the issues for which the Board has solicited briefing over the next few weeks, starting with the standard for determining an appropriate bargaining unit.

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This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.