By: Tom Davies Esq. Shareholder, Harmon & Davies
If you are reading this article, which indicates you have some interest in labor law, then you are probably relatively up-to-date on legislative developments in Washington D.C. regarding the bill known as the Protecting the Right to Organize (PRO) Act. Since its fate on a straight up and down vote in Congress was uncertain, President Biden and his Democrat allies put many of the PRO Act provisions in the Build Back Better Act. As of this writing, it does not appear that Build Back Better will win Congressional approval in its present form (thanks to Senators Manchin and Sinema!) Unfortunately, this does not mean that merit shop employers don’t have to worry about dramatic changes in labor law that will be designed to make it easier for unions to organize and harder (and potentially far more costly) for employers to oppose any such efforts.
The Democrats now have a 3-2 majority of the members of the National Labor Relations Board (NLRB) and Democrat Jennifer Abruzzo was confirmed as the General Counsel of the NLRB on July 22, 2021. The General Counsel is in a position to control what cases are presented to the five-member Board for decisions. This gives her the ability to decide whether the Board will have the opportunity to reverse existing case law and to expand remedies for violations of the National Labor Relations Act. For much of the past forty years, following the NLRB decision-making process was like watching a tennis match, with decisions on certain major issues often being reversed every eight years or so once a President from one political party had the opportunity to replace Board members from the other party with those of his own choosing. Labor law attorneys have gotten so used to this process that we often have to provide advice to clients contingent upon which political party will control the White House and the Senate (which confirms both the General Counsel and Board members) a year or two later.
General Counsel Abruzzo has outlined her agenda in a series of official GC Memoranda as well as through press interviews and even on Twitter. A lengthy GC Memoranda issued on August 12, 2021, identified more than 40 decisions from the last four years that she wants the Board to “reconsider.” Almost all of these fall in to the “tennis match” category of cases, but she has also expressed a desire to have the Board “reconsider” some precedent which has been considered settled for at least fifty years.
Since at least 1970, employers have generally been allowed to refuse to recognize a labor union upon demand unless the company knew that the union did, in fact, represent a majority of the employees in an appropriate bargaining unit. In a formal memo and then a series of tweets on September 24, 2021, General Counsel Abruzzo indicated that she was considering urging the Board to resurrect a doctrine first established in the 1949 Joy Silk Mills case which held that it was an unfair labor practice for an employer to decline to recognize a union upon demand unless the company could prove that it had a good faith doubt as to the union’s majority status. This is a standard that might be very difficult for many employers to meet.
Another area where General Counsel Abruzzo is seeking to effectively change existing law is in the area of economic remedies for unlawful terminations, which have traditionally been limited to backpay for the period of unemployment and an offer of reinstatement. She has now expressed an intent to seek compensatory damages and front pay (pay for some period into the future.) This could result in a dramatic increase in the costs associated with prosecution of a company by the NLRB.
These potential actions of the NLRB make it critical that employers understand that there could be dramatic changes in labor law enforcement designed to make union organizing easier even if there are no actual changes to the law made by Congress. As always, ABC Keystone will keep members up to date on any such developments.
Hear more from Tom Davies, Esq. at ABC Keystones upcoming Regional Construction Wake-up Calls!
SPRING 2022 Topic:
Biden’s ‘Build Back Better’ or ‘Bad for Business Bill’
Prepare Your Business for the ‘BBB’
With: Tom Davies, Esq., Harmon & Davies, P.C.
ABC Members: If you would like to submit an “Ask an Attorney” or “Ask an Accountant” article for a future Merit Shop Spokesman, please contact: kristi@abckeystone.org
Posted February 16, 2022
