Does the NLRB Still Matter?


By Michael Rudman

One of the most highly anticipated changes with the transition in Washington from one political party to another involves the makeup of the National Labor Relations Board (NLRB). Once known exclusively for its oversight of unionized workplaces, the agency has in recent years expanded its scope to include decisions and actions favoring unions and people trying to organize unions.

Traditionally, the board is composed of five members, three of which, including the chair, are from the president’s party, and two from the opposition party. Political fights over the years have led to nominees not being confirmed for long periods of time, leaving the board without a majority or sometimes without even a working quorum.

With Senate action this summer, the NLRB now has two Republicans and two Democrats. The status of the president’s final nominee is currently on hold within the Senate confirmation process, with no firm date for a vote. Given the likely tie vote on contentious matters until the final board member is approved, employers can expect that existing case law and precedents established over the past administration will remain in effect for the foreseeable future.

Does the NLRB matter now that there is a Republican administration? The answer is yes. NLRB still has a great deal of power in shaping some aspects of the American workplace. Employers must still be cautious about running afoul of the National Labor Relations Act (NLRA) if they engage in unfair labor practices.

To help minimize the risk of getting in trouble anytime an employer may be dealing with a union organizing drive, it is handy to remember the acronym TIPS. It serves as a reminder that, when an employer has a union or is facing a union drive, mistakes can be costly.

• An employer may not THREATEN employees with reprisals or other negative actions for discussing, supporting, or voting for a union. An employer may not threaten to close or relocate a business in the face of union activity.

• An employer may not INTERROGATE an employee about union activity, discussions, meetings, or any other events or activities relating to a union.

• An employer may not PROMISE rewards, different working conditions, new benefits, or other changes in status, compensation or employment in an attempt to discourage an employee from considering a union.

• An employer may not SPY on employees or union organizers for the purposes of gaining insight into union sympathizers, union promises, union activities, and the like. An employer cannot request or require an employee to act on the employer’s behalf in monitoring or reporting on union activities.

Michael Rudman is senior director at Associated Industries of Massachusetts. This article first appeared on the AIM blog.