The NLRB is back in business. After several years in the weeds, there is now a fully constituted Board, a confirmed General Counsel and no questions as to the legitimacy of any appointments.
Of course, there is also a Congress which at present does not appear as though it could muster up enough support for a bill to declare that Mickey is a mouse. So, the chances of any changes to the National Labor Relations Act — to the left or to the right — appear very unlikely to happen.
However, the stage is set for robust regulatory action from the Board and the revival of policies that stalled during President Obama’s first term. First on the list is likely the revival of a June 2011 rule that would require law firms and other “advisers” to publicly disclose the revenues they generate from advice related to labor organizing.
Employers can also expect the Board to seek reversal of Bush-era precedents. Among other things, the Board is expected to take decisions which will give it the opportunity to reverse decisions that:
- made it difficult for unions to organize temporary workers;
- prohibited employees and unions from using company e-mail for union solicitations;
- restricted access to employer property for union organizing efforts; and
- made it more difficult for unions to organize smaller, more union-friendly bargaining units.
By the same token, it would not surprise anyone if the Board decided to revisit whether Weingarten rights (the right of a union employee to have a representative present for a meeting which he reasonably expects to involve discipline) apply in a non-union setting — a rule which seems to change from administration to administration.
The U.S. Supreme Court is also expected to void President Obama’s recess appointments to the Board and in so doing nullify the far-reaching decisions his first term Board reached on social media, arbitration agreements, employee handbooks, and internal investigations. If that happens, employers should expect the Board to take up cases on those same issues again so its holdings cannot be challenged for that procedural reason.
In other words, the sky is the limit for this second-term Obama Board. While many of these actions will be challenged in federal courts (perhaps successfully so), employers should prepare for a hailstorm of activity on the labor front in 2014.