agencies such as the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC).


A similar bias existed during the Obama administration, during which one law firm estimated that more than 4,500 cumulative years of legal precedent were overturned by an activist majority at the NLRB. That majority upended countless well- established policies by introducing new legal theories on topics ranging from what constitutes a joint employment relationship to what workplace policies employers may not maintain (for example, requiring civility toward customers and coworkers). For fans of the comic book Superman, Bizarro World comes to mind.


During the Trump administration, the Republican majority at the NLRB tried to restore some sense of balance by reversing many of the lopsided policies that were enacted during the prior eight years. However, on his first day in office, President Biden fired the NLRB’s general counsel, who serves not only as the agency’s attorney but also as the person who tees up cases through which the board establishes precedents via case law. That move effectively halted any further efforts to overturn Obama-era policies and, as of mid-2021, the NLRB had a new general counsel, Jennifer Abruzzo, who has made it clear she intends to swing the policy pendulum in favor of unions once again.


Reinterpreting Long-Held Standards


Collecting signature cards can subject workers to coercion or harassment to get them to sign up, and the NLRA historically does not require employers to recognize a union based on these cards.


That pendulum swing is based on an expansive interpretation of the National Labor Relations Act (NLRA), the 1935 law that the NLRB enforces. Under that law, when workers decide on a union, they typically do so by secret ballot, where their privacy is respected, and no one knows how they vote. The general counsel, however, wants to mandate a “card check” process, under which union organizers may publicly solicit workers to sign a card indicating their choice for or against a union.


Collecting signature cards can subject workers to coercion or harassment to get them to sign up, and the NLRA historically does not require employers to recognize a union based on these cards. To get around the statute, however, the general counsel seeks to revive a long-discredited case known as Joy Silk Mills v. National Labor Relations Board. Under this Joy Silk doctrine, if an employer refused to recognize a union based solely on signature


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cards, the NLRB could seek an order forcing the business to the bargaining table without any secret ballot election. This would allow unions to organize workplaces more quickly and easily, but it would also short- circuit the protections of the NLRA for employees, not to mention employers. Beyond the union recognition


process, the general counsel also announced that she would ask the NLRB to find that meetings at which employers express their views on union organizing violate the NLRA. That view does not jibe with the text of the law, which Congress amended in 1947 to state explicitly that “the expressing of any views, argument, or opinion” by an employer about union issues does not constitute an unfair labor practice provided that it does not include threats of reprisal or promises of benefits. NLRB and court precedents in the 75 years since then have upheld such employer meetings, so it would be another radical departure should the current board majority adopt this interpretation of the law. In addition to those issues, employers can expect an expansive emphasis on employees’ rights under Section 7 of the NLRA, which protects so-called concerted activity among employees. Under the Obama-era NLRB, a subjective interpretation of that section ensnared many an employer whose workplace policies (such as the aforementioned civility requirement) allegedly violated the NLRA, and the new general counsel seems poised to follow suit. She also has teed up a case to overturn the board’s 2019 SuperShuttle decision that restored a rational test for determining whether an individual is an independent contractor rather than an employee. In late 2021, the General Counsel’s office brought a case called The


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