Key takeaways | The Current State of the NLRB and What’s Next for Employers

With the changes in the National Labor Relations Board’s (NLRB) membership and enforcement priorities, employers have a unique opportunity to reassess their labor relations strategies. Employers can take advantage of expected shifts in precedent and a more favorable environment for management.

Members of McDermott Will & Schulte’s Labor Group examined the state of the NLRB, key developments signifying the NLRB’s new direction, and practical considerations to help employers navigate the evolving regulatory environment.

Top takeaways included: 

1. The NLRB is poised for significant changes in precedent. The NLRB now has a 3-1 Republican majority and is expected to overturn precedent from the Biden Administration. Decisions and policies signaled for potential reconsideration include the expanded remedies in unfair labor practice cases, employer captive-audience meetings during union organizing campaigns, union recognition on showing of majority support or prompt RM Petition filing with a lower standard for bargaining orders during organizing campaigns, and the Section 103.20 blocking-charge policy delaying election petitions during pending unfair labor practice charges.
2. Changes at the General Counsel’s office are already affecting NLRB proceedings. General Counsel Crystal Carey has signaled new enforcement priorities in memoranda and motions. In addition, the new docketing protocol generally requires charging parties to provide evidence in support of unfair labor practice charges within two weeks or face dismissal of the charges. Employers should raise defenses to charges as early as possible and rely on the NLRB’s Division of Advice.
3. Courts are reshaping the labor landscape. There are circuit splits on significant NLRB doctrines and remedies, including Cemex bargaining orders and expanded Thryv remedies. In addition, the DC Circuit recently struck down the Board’s “successor bar” based on Loper Bright’s limitation on agency deference.
4. The Faster Labor Contracts Act (FLCA) could dramatically accelerate first-contract bargaining. The House-passed, bipartisan FLCA would impose strict timelines for negotiating a first collective bargaining agreement and mediation to facilitate the negotiations. If those efforts fail, the FLCA would require binding arbitration. If enacted, employers should be prepared to assemble bargaining teams and information required for effective negotiations as soon as the NLRB certifies a union.
5. Employers should cautiously take bold stances in labor relations. Existing Board precedent remains binding until it is overturned. But employers can take more aggressive positions in organizing strategies, collective bargaining, labor relations strategy, and unfair labor practice defenses.

To view the webinar slides, click here.