The Center Square

National Labor Relations Board shift will harm workers and job creators

Published in The Center Square
October 12, 2021
By Nathan Mehrens, Senior Fellow, Institute for the American Worker 

Recent changes to the composition of the National Labor Relations Board and its general counsel will mean significant changes in the law for private sector collective bargaining. The Board oversees unionization campaigns authorized by the National Labor Relations Act (NLRA) and generally plays referee between employees, employers, and unions.

Two new Democrat members were confirmed over the summer, giving the Board a full membership and a 3-2 Democratic majority. The U.S. Senate also confirmed a new general counsel for the Board after the President summarily, and questionably, fired the previous general counsel.

The new general counsel, Jennifer Ann Abruzzo was previously a Board employee for over twenty years. She quickly issued memos that set forth what we can expect from her office. The general counsel determines the cases that are brought before the Board. As such, the areas of emphasis in the new counsel’s memos provide a roadmap for the coming years.

Abruzzo is concerned with what is allowed to be in an employer handbook, what types of confidentiality agreements can be entered into between employers and employees, how union dues are handled if a collective bargaining agreement expires, what information is given to employees who don’t want their money used by the union for political purposes, and whether a person is an independent contractor or an employee.

In these areas, employers cannot simply “do the right thing” to be in the clear. They must follow a labyrinth of rules that are not always intuitive. While there are some known practices that will get an employer in hot water, such as firing an employee who is trying to unionize, many other seemingly benign activities will now be subjected to greater scrutiny.

For example, what happens when an employer seeks to have the U.S. Post Office install a postal box near the entrance of its facility so that its employees who are voting their private ballots in a unionization election can do so in a more convenient manner?

This happened in a recent case where a union was attempting to unionize Amazon employees. Despite losing by a landslide, the union is attempting to get a second election on the basis that Amazon’s conduct here violated the NLRA.

The Board’s hearing officer’s report concedes that there is no evidence of any ill effect on the election’s outcome from having a post office box in that location, but nonetheless found that the employer’s activity “so undermined the laboratory conditions necessary to ensure a free and fair election” that a new election is needed.

It is just as likely that the installation of this box resulted in more votes for the union as for Amazon, but none of this can be proven because the ballots are private. Given the current composition of the Board, Amazon will likely have a hard time prevailing in this case.

Outside of elections, look for a return to the Board’s past practice of attempting to micro-manage work rules found in employee handbooks. This could put employers in the position of not putting rules in writing for fear of being subjected to unfair labor practice charges. In some cases, having fewer rules in writing could put employees in the position of having fewer workplace protections. They will have a harder time understanding what is expected of them because employers are not allowed to state those things explicitly.

Shifts in the Board’s personnel and policy mean a new era in the landscape of employer-employee relations. Employers will have to figure out what is acceptable, one case at a time. Unions will happily benefit. Employees will be caught in the middle, which is not an enviable position.

Nathan Mehrens, a Senior Fellow at the Institute for the American Worker, previously served as the Associate Deputy U.S. Secretary of Labor.