A Biden Board at the NLRB: What to Expect and When

November 17, 2020 | Labor Relations, Federal Laws and Legislation, National Labor Relations Board

This past Labor Day, President-elect Joe Biden told a group of union supporters that he would be “the strongest labor president you have ever had.” Just how true those words will be hinges on what party controls the Senate after the dust settles on this election season.

As part of his labor goals, Biden has championed the PRO Act, a substantive and drastically pro-union rewrite of the 85-year-old National Labor Relations Act that was passed by the House in early 2020. The PRO Act would codify the ambush election rule and micro-unit policy, neuter employers’ ability to mount counter-campaigns to union organizing attempts, and weaken right-to-work laws that protect employee free choice. The ambitious legislation would also permit the NLRB to issue heavy monetary penalties on employers for violating the NLRA and would more strictly require bargaining after an initial certification of a new union.

The legislation would be destructive to companies, but it seems unlikely to become law in today’s political landscape. Indeed, a less ambitious pro-labor bill, the Employee Free Choice Act, failed to pass a Democrat-controlled Congress in 2009.

But even if the PRO Act does not come to fruition, one thing is clear: there will be changes. Employers have benefitted greatly from the pro-employer NLRB over the past four years. We have seen a flurry of positive changes including wins on issues like joint employers, micro-units, abolishing the ambush election rule, and making it easier for employers to make unilateral changes in the workplace.

When and how change might occur under President-elect Biden will largely depend on when he is able to gain control of the NLRB.

The NLRB is currently composed of three Republican members and one Democrat, with one vacant seat. Assuming President-elect Biden is able to fill the vacant seat, his first opportunity to flip control of the Board in his favor will come in August 2021, when Trump appointee Bill Emanuel’s seat expires. NLRB General Counsel Peter Robb’s term expires in November 2021. Even then, control depends on the Senate confirming both the new general counsel and Board member positions.

In short, we could expect there to be pro-union changes at the NLRB beginning in the fall or winter of 2021. This timeline is similar to the beginning of the Trump administration, when we saw the biggest flurry of pro-employer rulings come in December 2017 after Republicans gained control of the NLRB. Once Biden gains control, we might see a strategy similar to that employed by the Trump and Obama Boards. A mix of precedent-overturning NLRB decisions and rulemaking could be in store for employers.

RELATED TOPICS

Kicking It Into Gear: NLRB Continues Improving Case...

Airplane Parts Maker Grounded for Unlawfully Withdrawing...

Redux: The PRO Act is Back in Congress

March 15, 2023 | Labor Relations, Federal Laws and Legislation, National Labor Relations Board

On the Hunt: NLRB’s Top Lawyer Seeks Out Cases to Upend Precedent

March 6, 2023 | Labor Relations, National Labor Relations Board

Unions By the Numbers: 2023 Edition

January 19, 2023 | Labor Relations, Unions and Union Membership

Labor Law Changes To Be Aware Of In The New Year

January 3, 2023 | Labor Relations, National Labor Relations Board

Do Smartwatches, GPS Devices, and Other Employee Tracking Technologies Violate Labor Law?

November 1, 2022 | Labor Relations, National Labor Relations Board

View All

Redux: The PRO Act is Back in Congress

March 15, 2023 | Labor Relations, Federal Laws and Legislation, National Labor Relations Board

On the Hunt: NLRB’s Top Lawyer Seeks Out Cases to Upend Precedent

March 6, 2023 | Labor Relations, National Labor Relations Board

Unions By the Numbers: 2023 Edition

January 19, 2023 | Labor Relations, Unions and Union Membership

Labor Law Changes To Be Aware Of In The New Year

January 3, 2023 | Labor Relations, National Labor Relations Board

Do Smartwatches, GPS Devices, and Other Employee Tracking Technologies Violate Labor Law?

November 1, 2022 | Labor Relations, National Labor Relations Board

Mailing It In? Labor Board Signals Potential Return To Manual Elections

October 3, 2022 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Do You Have to Negotiate Your Office Return-to-Work Plans?

September 21, 2022 | Labor Relations, Labor Agreements, Unions and Union Membership

Not So FAST…Blocking California’s New Fast Food Industry Union Giveaway

September 12, 2022 | Labor Relations, State Labor Laws, Currents - Employment Law

NLRB Proposes Rescinding Trump Board Rule and Expanding Definition of ‘Joint Employer’

September 8, 2022 | Labor Relations, National Labor Relations Board

Order Up! California Governor Signs Fast Food Accountability Law Aimed at Larger Fast Food Operations

September 7, 2022 | Labor Relations, State Labor Laws, Currents - Employment Law

Labor Day 2022: State of the U.S. Labor Unions

September 2, 2022 | Labor Relations, Unions and Union Membership

Federal Court Orders Starbucks to Re-Hire Terminated Union Supporters

August 23, 2022 | Labor Relations, Unions and Union Membership

What a Journey: Negotiating a Union Contract May Take Longer Than You Think

August 15, 2022 | Labor Relations, Unions and Union Membership

Will Nonunion Employees Have Weingarten Rights in the Workplace Soon?

August 8, 2022 | Labor Relations, Unions and Union Membership

Union Business Still Booming: Election Petitions Continue To Soar

July 20, 2022 | Labor Relations, Union Organizing

Classifying Workers as Independent Contractors May Soon Become More Complicated

July 18, 2022 | Labor Relations, National Labor Relations Board

The Price for Refusing to Bargain May Soon be Going Up for Employers

July 7, 2022 | Labor Relations, National Labor Relations Board, Union Organizing

Does An Apple a Day Keep the Union At Bay? Nope.

June 28, 2022 | Labor Relations, National Labor Relations Board, Union Organizing

Say It Ain’t So (Trader) Joe’s: Grocery Chain Workers File Union Petition

June 15, 2022 | Labor Relations, Union Organizing

Another COVID-19 Labor Law Change: Labor Board Updates Notice Posting Requirements

June 9, 2022 | Labor Relations, National Labor Relations Board

Shorthanded: Labor Board Faces Challenges In Handling Influx of Cases

May 9, 2022 | Labor Relations, National Labor Relations Board, Union Organizing

Labor Law Remedies: Back Pay, Front Pay, And … Training?

May 2, 2022 | Labor Relations, National Labor Relations Board

What’s Brewing at Starbucks? Labor Law Litigation Over Employee Terminations

April 26, 2022 | Labor Relations, National Labor Relations Board, Union Organizing

Up and Away: Union Organizing Skyrockets 57% in Last Six Months

April 19, 2022 | Labor Relations, National Labor Relations Board, Union Organizing

Employee Social Media Complaints: Employers Beware

February 7, 2022 | Labor Relations, National Labor Relations Board

Unions by the Numbers: 2022 Edition

January 24, 2022 | Labor Relations, Unions and Union Membership, Union Organizing

NLRB and Department of Labor Join Forces: What Does This Mean for Employers?

January 19, 2022 | Labor Relations, Department of Labor, National Labor Relations Board

Union Organizing Alert: Micro-Units May Be Back at the Labor Board

December 16, 2021 | Labor Relations, Union Organizing, National Labor Relations Board

Abruzzo's Tweets Take Aim at Employer-Friendly Labor Law Precedent

December 8, 2021 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Fast Times at the NLRB: The Labor Board Targets Spicoli

November 12, 2021 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Union Challenge to Vaccine Mandate Hits Legal Snag

October 15, 2021 | Labor Relations, Unions and Union Membership

Are College Athletes Employees? NLRB Reverses the Call on the Field

September 30, 2021 | Labor Relations, National Labor Relations Board

Draconian: NLRB Signals Even Harsher Penalties for Employers May Be Coming

September 23, 2021 | Labor Relations, National Labor Relations Board

Employers Beware: NLRB General Counsel Pushes for Expanded Economic Penalties

September 10, 2021 | Labor Relations, National Labor Relations Board

Giggity Giggity: Gig Economy Workers Launch Unionization Effort

August 6, 2021 | Labor Relations, Union Organizing, National Labor Relations Board

Prepare for Takeoff: NLRB’s New Pro-Union Majority Will Soon Take Over

July 30, 2021 | Labor Relations, National Labor Relations Board

Un-Exterminated: Scabby the Rat Is Back, Says Labor Board

July 29, 2021 | Labor Relations, National Labor Relations Board, Strikes and Picketing, Unions and Union Membership

Squeaky COVID Wheel Doesn’t Get the Grease

July 8, 2021 | Labor Relations, National Labor Relations Board

Coming Soon to a Workforce Near You: The NLRB

June 22, 2021 | Labor Relations, National Labor Relations Board, Union Organizing

Is It Time To Review and Consider Updates to Your Personnel Policies?

June 16, 2021 | Labor Relations, National Labor Relations Board

Goodbye NY: No Union For Uber Drivers…For Now

June 11, 2021 | Labor Relations, National Labor Relations Board, State Labor Laws, Unions and Union Membership

Unblocked: Labor Board Declines To Delay Decert Election Based On Pending ULPs

June 4, 2021 | Labor Relations, National Labor Relations Board, Union Organizing

President Biden Nominates Union-Side Attorney Gwynne Wilcox to the NLRB

May 28, 2021 | Labor Relations, Federal Laws and Legislation, National Labor Relations Board

What the Heck Do Girl Scout Cookies Have to Do With Personnel Policies?

March 29, 2021 | Labor Relations, Unions and Union Membership

Rescue for Union Pension Plans – and Maybe Union Employers

March 17, 2021 | Labor Relations, Unions and Union Membership

Buckle Up, Employers: PRO Act Passes the House

March 11, 2021 | Labor Relations, Federal Laws and Legislation, Union Organizing

Watch Out! Three Big Issues All Companies Need to Monitor at the NLRB

March 2, 2021 | Labor Relations, National Labor Relations Board, Labor Agreements, Unions and Union Membership

Certain Cannabis Workers Are Not Protected by the NLRA

February 18, 2021 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Acting NLRB General Counsel Rescinds 10 Trump-Era Guidance Memos

February 16, 2021 | Labor Relations, National Labor Relations Board

Are the Rules Changing for Employer Dress Codes and Union Insignia?

February 15, 2021 | Labor Relations, Unions and Union Membership, National Labor Relations Board

Non-Union Construction Companies Face Significant Threats Under the PRO Act

February 11, 2021 | Construction Law

What Is The PRO Act And Should Your Company Be Concerned?

February 4, 2021 | Labor Relations, Federal Laws and Legislation, Union Organizing

Unions by the Numbers: 2021 Edition

January 27, 2021 | Labor Relations, Unions and Union Membership

Slow Mo: Union Election Pace Slowed In 2020

January 11, 2021 | Labor Relations, Unions and Union Membership

Potential NLRA Impacts of a Mandatory COVID-19 Vaccination

January 5, 2021 | Labor Relations, National Labor Relations Board

What Were the Three Biggest Labor Law Developments In 2020?

December 18, 2020 | Labor Relations, National Labor Relations Board

Airplane Parts Maker Grounded for Unlawfully Withdrawing Recognition of Union

November 20, 2020 | Labor Relations, Unions and Union Membership, National Labor Relations Board

Yet Another 2020 Labor Law Oddity: Employer Lockouts Fall Precipitously

November 2, 2020 | Labor Relations

Does Labor Law Protect Employees Engaged In Political or Social Advocacy?

October 14, 2020 | Labor Relations, National Labor Relations Board

Fisticuffs: Union Boss Sentenced to Prison for Assault on Non-Union Workers

September 29, 2020 | Labor Relations, Unions and Union Membership

Zip It: Severance Agreement Confidentiality Provisions Upheld

September 23, 2020 | Labor Relations, National Labor Relations Board

Sixth Circuit Calls NLRB-Ordered Public Notice Reading Into Question

September 11, 2020 | Labor Relations, National Labor Relations Board

Labor Day 2020: State of the U.S. Labor Unions

September 4, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

NLRB Offers Some Pandemic Labor Law Clarity

August 12, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Can You Have Policies Allowing Searches Of Employee Emails And Personal Vehicles?

July 22, 2020 | Labor Relations, National Labor Relations Board

Big Changes to California’s Garment Industry Possible

July 9, 2020 | Labor Relations, State Labor Laws

Labor Board Says Notice Posting Requirement Cannot Be Satisfied During Shutdown

May 8, 2020 | Labor Relations, National Labor Relations Board

Labor Law Considerations As You Restart Your Business

May 8, 2020 | Labor Relations, Unions and Union Membership, Federal Laws and Legislation

Labor Board: Union’s Attempted Roadblock To Member Resignation Unlawful

April 28, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Employer Must Show Evidence of Union’s Loss of Majority Support to Withdraw Recognition

April 24, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Ouch: Union Dinged By Federal Court for Disrespectful Remarks to Resigning Member

April 20, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Are Tech Workers Considering Unionizing In The Wake Of COVID-19?

April 15, 2020 | Labor Relations, Union Organizing

Back To Normal? Labor Board To Restart Union Elections

April 2, 2020 | Labor Relations, National Labor Relations Board

Coming Into Focus: Labor Board Issues Some NLRA Pandemic Guidance For Employers

April 2, 2020 | Labor Relations, National Labor Relations Board

Labor Board Finalizes Rule Changes to Enhance Employee Free Choice

April 1, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Beware of the Small Print! CARES Act Provide Boons to Labor Unions

March 27, 2020 | Labor Relations, Unions and Union Membership

Can You Conduct Collective Bargaining By Phone or Teleconference In the Age of Coronavirus?

March 26, 2020 | Labor Relations, National Labor Relations Board

What Public Employers Are Seeing From Their Unions During The COVID-19 Outbreak

March 26, 2020 | Labor Relations, Public Employees, Unions and Union Membership

Do You Have To Bargain With Your Union Over Your Coronavirus Response Measures?

March 19, 2020 | Labor Relations, Unions and Union Membership

Ouch! Company Ordered To Reopen, Rehire Illegally Fired Employees

March 10, 2020 | Labor Relations, National Labor Relations Board, Union Organizing

Just a Reminder: Your Employees May be Recording You

February 13, 2020 | Labor Relations, National Labor Relations Board

NLRB Continues To Validate Employee Confidentiality Provisions

February 7, 2020 | Labor Relations, National Labor Relations Board

Roaring ‘20s for Unions on the Horizon? Doesn’t Appear So…

January 30, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Show Me The Money! CNN To Pay $76 Million To Resolve Labor Board Complaints

January 22, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Labor Board Rounds Out 2019 with a Few More Obama-Era Reversals

January 6, 2020 | Labor Relations, National Labor Relations Board, Unions and Union Membership

NLRB Squares Itself With EEOC: Employers May Require Confidentiality During Open Investigations

December 18, 2019 | Labor Relations, National Labor Relations Board

Dues Check Off Provisions Once Again Expire With CBA, NLRB Rules

December 16, 2019 | Labor Relations, National Labor Relations Board, Unions and Union Membership

Can You Spy on Your Employees' Private Facebook Group?

November 1, 2019 | Labor Relations, National Labor Relations Board

What Happened To Former NLRB Chairman Mark Gaston Pearce?

July 1, 2019 | Labor Relations, National Labor Relations Board

Cough it Up! Company Forced to Give Union Complete Copy Of Third-Party Agreement

June 11, 2019 | Labor Relations, National Labor Relations Board

Can You Terminate An Employee For Talking To The Press?

April 24, 2019 | Labor Relations, National Labor Relations Board

Does Enrolling In E-Verify Violate Labor Law?

September 7, 2018 | National Labor Relations Board, Labor Relations

Fiat Chrysler UAW Collective Bargaining Process Under a Microscope

July 24, 2018 | Union Organizing, Unions and Union Membership, Labor Relations

Hey, Hey, Hey, Goodbye: DOL Persuader Rule Nixed

July 17, 2018 | Department of Labor, Labor Relations

Teamsters On The Hook For Full Back Pay, Says NLRB

June 7, 2018 | National Labor Relations Board, Labor Relations

Fractured Workforce: Union Scores Micro-Unit Election Win At Boeing

June 4, 2018 | National Labor Relations Board, Unions and Union Membership, Labor Relations

What Not To Wear: Employer Dress Code Policy Ruled Unlawful

May 7, 2018 | National Labor Relations Board, Labor Relations

Operating Engineers Union Sues Over Duty to Represent Non-Dues-Paying Employees

February 26, 2018 | Unions and Union Membership, Labor Relations

Does Misclassifying Employees As Independent Contractors Violate Labor Law?

February 19, 2018 | Department of Labor, National Labor Relations Board, Labor Relations

Columbia to Fight NLRB Ruling on Graduate Assistants’ Unionization Efforts in Federal Court

January 31, 2018 | National Labor Relations Board, Labor Relations

CLOSED: NLRB Among Agencies Closed During Government Shutdown

January 22, 2018 | National Labor Relations Board, Labor Relations

Potential Organizational Changes at the NLRB Could Drastically Affect Labor Board Case Handling

January 19, 2018 | National Labor Relations Board, Labor Relations

Trump Fills Final Vacancy on NLRB, Returns NLRB to Republican-Led Majority

January 19, 2018 | National Labor Relations Board, Labor Relations

Welcome to the NLRB Labor Law Time Machine, Step Right In…

December 19, 2017 | National Labor Relations Board, Labor Relations

And So It Begins…Trump NLRB Overturns Obama NLRB Precedent for First Time

December 12, 2017 | National Labor Relations Board, Labor Relations

Employers Face the Music: NLRB Judge Rules Musicians May Protest Outside Auditorium

December 11, 2017 | National Labor Relations Board, Unions and Union Membership, Labor Relations

There’s a Hole in Your Bucket: 114 Multiemployer Pension Funds on Track to Fail

August 23, 2017 | Unions and Union Membership, Labor Relations

Union Corruption: UAW and Auto Manufacturer Officials Allegedly Embezzled Millions in Union-Member Funds

August 11, 2017 | Unions and Union Membership, Labor Relations

Negotiating Tips: The Art of the Ratification Bonus

June 23, 2017 | National Labor Relations Board, Unions and Union Membership, Labor Relations

Untangling the Web? Senator Introduces Bill to Reverse Obama-Era Ambush Union Election Rules

June 21, 2017 | National Labor Relations Board, Labor Relations

‘Let’s Get Ready To Rumble!’ Class Action Waiver Battle Kicks Off At Supreme Court

June 15, 2017 | National Labor Relations Board, Labor Relations

‘BIG Little Lies’: Employer’s Inconsistent Practice Invalidates Employee Termination for Dishonesty, Says NLRB

June 13, 2017 | National Labor Relations Board, Labor Relations

Congressional Leaders Ask Trump to Fill Long-Standing Vacancies at the NLRB

June 7, 2017 | National Labor Relations Board, Labor Relations

‘Smile, You’re On Candid Camera’ – Federal Court Upholds NLRB Ruling That Prohibits Non-Union Employers From Banning Recordings in the Workplace

June 5, 2017 | National Labor Relations Board, Labor Relations

A Growing Divide: Sixth Circuit Decision To Invalidate Class/Collective Action Waiver Widens Appellate Court Split

May 31, 2017 | National Labor Relations Board, Labor Relations

Senator Introduces Bill To Amend NLRA And Reverse Micro-Unit Trend

May 26, 2017 | National Labor Relations Board, Labor Relations

Getting Away With Murder? NLRB Tells Federal Court Union Election Observer’s Use Of Fake Firearm Did NOT Invalidate Union Election Results

May 25, 2017 | Unions and Union Membership, Labor Relations

View Subscription Center

Back to All Blogs

Back to Labor Relations

A Biden Board at the NLRB: What to Expect and When

David J. Pryzbylski

Thomas C. Payne

PREV

NEXT

Subscribe

Barnes & Thornburg Racial and Social Justice Foundation

News

Alerts

Alerts

Blogs

Alerts

Blogs

A Biden Board at the NLRB: What to Expect and When

PREV

NEXT

RELATED ARTICLES