Navigating the NLRB in an Election Year: Buckle Up, It’s Going to Be a Bumpy Ride

By: Jonathan Landesman and Leigh Nazzario

Every four years, just like clockwork, we brace ourselves for the election cycle’s wild ride. But while the campaign ads and heated debates fill the airwaves, something just as crucial is brewing in the world of labor relations—the impact of a new (or returning) administration on the National Labor Relations Board (NLRB). If you’re not a legal eagle, don’t worry—we’re here to break it down without the jargon. Spoiler alert: the NLRB is about to get interesting.

What is the NLRB, and Why Should I Care?

Think of the NLRB as the referee in the arena of labor relations. It’s the body that decides the rules of engagement between businesses and unions when it comes to union organizing, collective bargaining, and worker rights. And, like any good referee, it doesn’t just enforce the rules—it also interprets them, and sometimes (depending on who’s in charge), it might “adjust” those rules a bit. But here’s the kicker: the NLRB’s calls can change depending on which political party is in power. So, in an election year, businesses and workers alike must be on their toes, ready for some potential rule changes.

The NLRB Under Democratic Leadership

When Democrats lead the NLRB, the agency often focuses more on supporting unions and promoting worker rights.

• Policy Changes: Under a Democratic NLRB, there may be a shift away from policies established during the Trump administration, leading to increased support for union organizing and collective bargaining.
• Potential Legal Challenges: Courts might intervene to review and possibly challenge the NLRB’s authority to interpret labor laws, introducing an element of legal uncertainty.

The NLRB Under Republican Leadership

If Republicans take charge, the NLRB may shift towards policies that provide businesses with greater control.

• Policy Changes: There may be a shift away from pro-union policies, giving employers more flexibility in decision-making without extensive negotiations with unions.
• Change in Leadership: A new general counsel could bring a business-oriented approach to the interpretation of labor laws.
• Regulatory Changes: Businesses might experience reduced regulations, leading to more operational flexibility.

Recent NLRB Developments:

• Card Checks: The Cemex decision now facilitates union organizing by card check rather than requiring secret ballot elections. When a union presents signed authorization cards from a majority of employees, the employer must either recognize the union or file a petition for an election within two weeks. The decision also eliminates re-run elections, meaning a single unfair labor practice (ULP) violation can result in a bargaining order. Employers are advised to know this new timeline, focus on compliance to avoid the risk of a ULP, and train employees about what it means to sign a union authorization card.
• “Quickie Election” Rules: The NLRB has reinstated the “quickie election” rules, speeding up union elections and limiting the time employers must prepare or challenge them. These rules compress timelines for pre-election hearings, filing petitions, notifying employees, and reducing an employer’s ability to respond effectively. Employers should review their workforce in advance to analyze potential bargaining units and supervisory roles. They should train staff to meet shortened timelines, ensure compliance, and avoid missing deadlines. Additionally, management should be educated on not viewing union authorization cards.
• Fair Choice Employee Voice Rule: The Fair Choice – Employee Voice rule allows unions to delay elections through ULP charges and removes the 45-day window for employees to challenge a union’s voluntary recognition. In the construction industry, unions can now secure recognition through contract language alone, without requiring a secret-ballot election. Employers should educate employees on their rights during organizing campaigns, as unions can file blocking charges to challenge a union’s majority status. Construction employers may maintain bargaining relationships after a contract expires based on the contract’s language.
• Joint Employer Rule: The new joint employer rule expands the criteria for establishing a joint-employer relationship allowing an entity to be considered a joint employer if it possesses indirect or reserved authority over employees’ essential terms and conditions, such as wages, hours, and work assignments. This contrasts with the old rule, which required actual and direct control. Although the rule has been struck down by a federal court for exceeding common-law limits, the NLRB is appealing the decision.
•  Chevron Deference: The Chevron Doctrine, which required courts to defer to agency interpretations of federal statutes, was recently overturned by the Supreme Court in the Loper and Relentless cases. This limits the NLRB’s ability to make major legal changes, especially when members are politically divided, and increases the likelihood of federal court challenges to NLRB decisions. Employers should continue to follow current NLRB precedent until courts rule otherwise.
• PRO Act: The PRO Act is pending legislation aimed at overturning right-to-work laws in 26 states and banning employer anti-union tactics, such as firing workers on economic strikes, holding mandatory anti-union meetings, and preventing workers from using work computers for collective action. It also protects strikes and secondary boycotts. While not yet law, experts believe its chances of passing are slim.

What’s Been Happening Lately?

The NLRB has been actively addressing several key issues:

• AI and Worker Rights: As businesses increasingly use AI for hiring and performance reviews, the NLRB is monitoring to ensure these technologies comply with labor laws and do not infringe on workers’ rights.
• Non-Solicitation Agreements: The NLRB is examining whether non-solicitation agreements, such as “no poaching” policies, may impact workers’ rights to organize and unionize.

How Can You Prepare?

No matter which way the election swings, it’s always good to be prepared for change. Here are a few tips to keep yourself ahead of the game:

1. Review Compliance: Make sure your practices align with current labor standards.
2. Monitor Trends: Keep an eye on NLRB rulings and how they may affect your business.
3. Consult the Experts: Whether it’s legal or HR, talk to people who can guide you through these changes.
4. Stay Flexible: Be ready to adapt your policies as necessary. The one thing you can count on is that things will change. The NLRB’s path can shift in an election year, and whether you’re a business owner or an employee, it pays to stay informed.