Webinar Review: Bipartisanship in the Biden Era

The New NLRB

By: Mary Lorson
NLRB logo

The National Labor Relations Board (NLRB) was created to enforce the 1935 National Labor Relations Act, protecting the rights of private-sector employees and working to “assure fair labor practices and workplace democracy nationwide.” The five-member Board decides cases on the basis of formal records, while the independent General Counsel is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases. (NLRB website).

Board members and General Counsel are appointed by the president, and confirmed by the Senate, and political winds often bring decisive change, as did this Inauguration Day, when President Joe Biden replaced Peter Robb with Peter Sung Ohr as Acting General Counsel, before the end of Robb’s term. “This set the stage for coming activity on the labor law front,” commented Dave Sherwyn ’86, JD ’89. Sherwyn is Director of the Cornell Center for Innovative Hospitality Labor and Employment Relations (CIHLER), which, along with Cornell Law School, brought together past NLRB Chair Wilma Liebman and former NLRB Board Member Harry Johnson III to share their perspectives from either side of the political aisle, in discussion with Harry Katz, former dean of Cornell’s Labor Relations (ILR) School and current director of the Scheinman Institute on  Conflict Resolution. Their conversation took place in early February, and can be watched here: The Biden NLRB: Bipartisan Perspectives.

The NLRB General Counsel chooses cases and frames philosophy

Sherwyn opened by asking the group to predict the effect of Biden’s abrupt replacement of the General Counsel. Johnson responded with a rhetorical Q&A. “How does the NLRB change law? General Counsel proposes; the Board disposes.” The General Counsel sets the tone and agenda by the choice of cases and philosophical frameworks, and Biden’s choice can be expected to favor organized labor’s priorities and viewpoints. Liebman agreed that Biden’s choice will be more worker-centered and added that another way that issues may be put before the board is through the NLRB representation case-procedures, petitions requesting elections to decide on employee representation in collective bargaining.

Adding academic analysis, Harry Katz observed two phenomena that set the context for future Board action. First, he stated that “Research and common-sense show that the current system is tilted heavily in favor of management; management can and does carry out legal and illegal steps to avoid unionism.” Second: Katz reminded that the 1935 law’s original intent was to let workers decide on representation “without coming under coercion or severe pressure…our system is not providing that.” Then Katz went on to cite a representation gap: “Workers want more involvement and representation than they have. Private sector unionism is limited: only about 6.5% [of the] workforce in [the] private sector [is] represented by unions.”

Tit for Tat, Flip-Flopping, Policy-Oscillation: Adjudication vs. rulemaking for labor and employers

Image of panelists David Sherwyn, Harry Johnson III, Wilma Liebman, and Harry Katz.

Liebman asserted that in every case where precedent was reversed during the Trump administration, the decision was pro-employer, which might make management lawyers cheer but is inconceivable under a statute intended to protect workers. (She listed a group of cases expected to be re-visited* under a Biden board.) From the management side, Johnson agreed with Liebman’s prediction of the re-examination and overturning of certain cases, saying it’s a “tit for tat” system where precedents are replaced by new precedents, but countering that employers lost “plenty of cases” during the Trump Board.

Historically, the Board relies on adjudication for making labor law and policy, but sometimes, as Sherwyn quipped, “bad facts make bad law.” Rulemaking, he noted, can be an alternative to adjudication—a broader way of looking at an issue, using more information and not bound by the facts of a case. Asked to explain rulemaking and its efficacy vis-à-vis case adjudication, Liebman allowed that rulemaking can be a means to avoid policy oscillation, but added that it is laborious and time-consuming, including a required period of inviting, reviewing and reckoning with comments before issuing a final rule. Rulemaking, she stated, is “harder to overturn than merely overturning a case.” Which is better? “There are pros and cons, depending on whose ox is being gored.” During her tenure as chair there were two rulemakings, both of which couldn’t be resolved through another means, with one set aside by the appellate court. She went on to say that the Trump Board has engaged in “unprecedented rulemaking, ripe for rescission or replacement.” Johnson agreed with the concept of a detailed rule on something “fundamental under the Act,” rather than relying on case adjudications “that can go back and forth,” but generally prefers adjudicating as more responsive approach to facts or issues changing over time.

Audience members reflected that Board flip-flopping disserves workers, and asked if a more stable approach to labor protections are in the offing. Katz saw no indication of this, and cautioned that, while it’s important for the Board to work toward fairness in the worker-employee relationship, “Board decisions don’t fundamentally change things on the ground; there are so many larger forces that are at play influencing those outcomes.” Katz added that state-and municipal-level action will intensify if federal-level policy paralysis persists, to which Sherwyn added that this could be an incentive for the management side to seek federal labor law reform, since larger companies operate in multiple states and municipalities, and need consistency.

On the resolution of the flip-flopping issue, Liebman observed a stalemate. Everyone involved sees that this isn’t ideal, but neither side, when occupying the majority, is likely to surrender the power at hand. Perhaps only legislation can resolve the back and forth.  Johnson outlined a frame for the conundrum: “51% of vote gets you 100% of the political power, but does that lead you to wanting to have 100% maximization of all your policy goals? The Board is a micro-version of that…At the board or congressional level, there will need to be some form of rapprochement.”

Attitudes about unions are changing

Sherwyn noted that Joe Biden frequently mentioned “good union jobs” during his campaign, and asked if this indicated a more positive view of unions, and/or the possibility of union organizing. Katz noted Gallup polling showing increasingly positive attitudes towards unions and collective bargaining, tied to increases in income inequality. “It’s not clear it leads to more unionism, but it definitely leads to more dissent, conflict, and turbulence at the workplace.” Johnson, too, reported that anecdotal and empirical indicators show a more positive view of unions, adding that an understanding of this relationship always boils down to the “correlation of persuasive forces on either side. If you have an employer that hasn’t done much for its employees, hasn’t communicated what it has done for its employees, that doesn’t have a culture of continuous improvement or proactivity, and isn’t in touch with the current pulse of its employees, and it’s slow or out of compliance with the NLRA or other labor laws, then that employer is going to lose hands-down.” Despite increasingly positive views of unions, actual unionization numbers are ticking down. Sherwyn summed up: “Bad HR equals unionization; good HR may not mean unionization.”

Heroes, villains, and collective activity

Katz detailed the increase in worker and citizen activism as seen in Occupy Wall Street, Fight for 15, Black Lives Matter, Parkland students, red-state teacher walkouts, and much more, now accelerated during the pandemic as workers have spoken out about adequate pay and protective gear. Citing many successes in organizing white collar workers (journalists and other media), Liebman invoked the cascading health, economic, racial justice, climate, and democracy crises as leading perhaps to a “collective activity moment… a pivotal moment for a revitalized labor movement.” Liebman then quoted a friend in the business world as saying, “Employers will come out of the pandemic as either heroes or villains.” There is a huge divide between labor and capital, she said, and this is a moment for employers to show greater consideration for employees’ needs for greater voice and power.

Employers and unions can be partners, post-pandemic

Sherwyn asked Johnson to share what employers are seeing as they emerge from the pandemic. Johnson said many employers hard-hit by the pandemic have little clue about what part of the economy still exists for them. “If they’re survivors, then they’re thinking about PPE and other workplace safety gear.” Johnson drew attention to current labor-management collaborations on vaccine requirements and accommodations, successorship transition and planning in the case of distressed sellers, job-sharing, and mental health issues. “There’s a lot of room for labor-management partnership.” Some employers think they couldn’t have survived with a union, while others were able to use the union as an ombudsperson, and gratefully. He offered that, while this really isn’t being pitched by unions to non-union companies, unions can tell employers how they were helpful in managing communications and other employee-needs during the pandemic.

Essential worker in PPE sanitizing a subway car
Essential worker in PPE sanitizes a subway car.

And afterwards, Harry Katz emphasized that ongoing health and safety concerns provide a possibility for joint gain while presenting a need for collective action. “The employees have to feel safe before the workplace is going to function well.” Without action, workers might feel compelled to initiate “wildcat strikes” (unionized worker strikes without union leadership support) over health and safety issues, which are likely to present themselves in the near future. Liebman observed that there’s been some talk of state legislation to require labor-management workplace committees to address health and safety issues.  A complaint was filed with the ILO charging that the U.S. government’s COVID-19 response violated global labor standards. She was emphatic about the pandemic’s revelations of the “structural weaknesses and economic injustices of our present system” and its effect on working Americans. “If you can’t connect everything the pandemic has exposed with labor law, then I would argue that labor law is doomed to be irrelevant and marginalized.”

Everything is on the table

The group rounded out the discussion in a mood of fatigued hope for the acknowledgement of previously under-heralded workers and citizens. Johnson called out the raw newness of this time as an opening. “Everything is on the table.” The elevation of health care, education, and grocery store workers to essential worker status and then to heroes, might lead to a persuasive argument that employees should be treated commensurately with their contributions. Johnson reminded that the term “essential came out of the nomenclature of these industries,” establishing that their products are essential to society. He closed by noting that some of those essential employers are pitching: “In order for our society to make it, we need to operate just as we are right now”.

*Liebman predicts the following cases are likely to return under the Biden administration:

  • The “SuperShuttle” case, which has been cited by gig-economy businesses (like Uber and Lyft) to treat their drivers as independent contractors, not employees afforded protection under the National Labor Relations Act
  • Joint employer doctrine
  • Unit scope decisions which made it more difficult for smaller units of workers to unionize (Volkswagen, Boeing), along with PCC Structurals, which overruled the Obama-era Specialty Health care, determining what groups of employees can unionize without requiring other groups to be included
  • Hotel (and other employers) may see cases revisited related to the right of access of contractor employees to the property to engage in protected union activity (New York, New York) as well as workers’ rights to use company email to communicate about working conditions or union activity (Casesar’s Palace)
  • General Motors’s case on the limits of protected speech, and cases where the “scope of protected concerted activity was narrowed.”

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