Introduction
In our last Review, we reported that the National Labor Relations Board had a very busy year. Despite the challenges of the COVID-19 pandemic, 2020 was also a fairly busy year for the Board. In its final year, the Trump Board produced a number of key decisions for employers. Whether those decision stand the test of time remains to be seen, because the Biden Board will soon begin its work. In the meantime, we will review the highlights from 2020 and preview some of the possible changes that may be down the road.
Like so many of us, the Board was forced to convert nearly of its employees to remote work in March of 2020, and ultimately transitioned most of its activities to a virtual environment. This included videoconferencing for unfair labor practice (“ULP”) and representational proceedings. The Board also continued to conduct representational elections, following a brief two-week shut down.
Court Remands NLRB Decision for Failing to Distinguish Contrary Precedent
A shift in the political party at the White House generally means a corresponding shift in philosophy for the National Labor Relations Board (NLRB). Naturally then, the question many employers are asking is not “Will the NLRB swing to a pro-labor position?” but “How far will the pro-labor pendulum go?” Mercurial NLRB policy is, after all, nothing new. The agency’s five-member decision-making panel is typically comprised of three members aligned with the president’s political party. Following four years under a pro-business administration, employers are now bracing for the inevitable flip back under a president who has already pledged to be the “strongest labor president … ever.”