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Since taking office in January 2021, President Joe Biden has taken a series of controversial and unprecedented actions to reshape the leadership of the National Labor Relations Board—an independent federal agency that is intended to serve as a neutral arbiter of federal labor law. At the direction of this leadership, the NLRB has focused on expanding and reinterpreting the law to favor unions at the expense of workers and employers alike by advancing an all-encompassing strategy driven by radical rulemakings and decisions.

NLRB RULEMAKINGS

As part of its efforts to reshape federal labor law, the Biden-era NLRB has issued several rulemakings to alter union representation elections and employer liability, including the “Ambush” Election, Representation-Case Procedures and Joint Employer rules.

Representation-Case Procedures: In November 2022, the NLRB issued its Representation-Case Procedures proposed rule, which would eliminate the requirement that construction industry unions retain proof of majority support to maintain an exclusive bargaining relationship. It also would rescind a worker’s right to challenge union representation and restore blocking charges, which allow unions to halt union representation and decertification elections by alleging an employer committed an unfair labor practice.

“Ambush” Election: Following this, the NLRB issued its August 2023 “Ambush” Election final rule, which reduces the time between when a union files for a representation election and when the election is held. This rule creates unnecessary urgency for employers and leaves them susceptible to violations of their due-process rights. At the same time, the rule deprives employees of the ability to gather information and decide whether or not to unionize.

Joint Employer: Most concerningly, the NLRB issued its October 2023 Joint Employer final rule, which made contractors vulnerable to increased liability and risk relating to joint employment. In March 2024, in a victory for ABC, a federal judge vacated the board’s 2023 joint employer final rule and the rescission of the ABC-supported 2020 rule. This means the 2020 NLRB final rule, which provides clear criteria for companies to apply when determining joint-employer status under the National Labor Relations Act, remains in effect.

NLRB DECISIONS

The NLRB has also reversed precedent in its push for unionization.

Independent contractors: Notably, in its Atlanta Opera decision, the board narrowed the independent-contractor standard under the NLRA, making it nearly impossible for workers to qualify as independent contractors.

Handbook policies: In its Stericycle decision in August 2023, the NLRB adopted a strict new standard for determining whether an employer’s workplace rules violate the workers’ right to collectively bargain under the NLRA. The Stericycle decision overturned the Trump-era NLRB’s 2017 Boeing decision and could fundamentally affect the labor policies of many employers in the construction industry.

Union recognition: Soon after the Stericycle decision, the NLRB issued its decision in Cemex, which substituted card-check recognition in place of secret-ballot elections and lowered the threshold for a board-ordered bargaining order. Now, when unions claim majority support, employers must either voluntarily recognize the union or file a petition for an NLRB election within two weeks; if the employer fails to file for an election within two weeks, the NLRB can require the employer to recognize and bargain with the union.

LOOKING FORWARD

The Biden-era NLRB strategy of promoting unionization at every turn is deeply concerning. It threatens small businesses and disregards workers’ freedom to make their own choices on unionization.

Looking forward, the presidential election will determine the direction of the NLRB. Meanwhile, it is up to the courts and Congress to disapprove of the agency’s partisan and unprecedented actions.