What the Midterms Mean for the NLRB

Midterm Election Impact on Labor

• If Democrats had been able to maintain a supermajority in both chambers of Congress, and even increase their presence in the Senate, they would have had a better chance at delivering President Biden’s legislative agenda.
• More importantly, the midterm elections impact on labor zeros in on funding of the NLRB. 
  • The NLRB claims to be vastly underfunded, writing letters to Congress to ask for funding, or risking furloughs and layoffs. There is internal maneuvering happening right now to keep the agency afloat.
• Now that Republicans have achieved a majority status in the House of Representatives, it will have a significant impact on funding of the NLRB. 
  • They will have the opportunity to stall the appropriation bill, and could heavily curtail the board’s agenda, prolonging the board’s backlog, and exacerbating potential furloughs. 
  • Looking more broadly, the Republicans gaining control of the House is their way of curtailing President Biden’s labor agenda. 
  • The NLRB is currently asking for more that $300 million, which is a significant increase over their current budget. 
• The midterm elections have less of an impact on the upcoming NLRB nominations because President Biden will control the Democratic dominance on the NLRB. The members of the board whose terms expire in December, will be renewed by members of their own party.
  • There could be significant efforts to retain the majority of the board at 5 members for the Democrats, but this is still developing.
  • There is a significant enough influence inside the Board, giving it full operating strength, even if the number of seats are reduced, because the Democratic majority would still prevail.

The PRO Act

• Another way the midterm elections impact labor is legislatively. The state of the Senate remains in the balance with the run-off election that is underway in Georgia, but otherwise, Democrats will maintain their majority status in the Senate.
  • There are a small handful of Democrats who have held out on President Biden’s PRO Act. It is unlikely that legislation will have much movement over the next two years.
  • Instead, elements of the PRO Act could be seen in other bills and pushed through in smaller ways.

How Impactful is the NLRB?

• As seen in the first two years of the Biden administration, NLRB General Counsel, Jennifer Abruzzo, has been very active, and has made her agenda clear. 
  • She has already followed through on some items of her agenda, focusing on tilting the scale of power back to workers, and reversing measures made during the Trump administration and earlier. 
• Through rulemaking and case law, the NLRB can impact how businesses interpret and are held accountable to the National Labor Relations Act.
  • The NLRB has a say in how companies can communicate with their employees, how unions can access property, how 1099 and contract employees are treated and processed, the speed of election processes for collective bargaining agreements, and more.
• In recent years, the NLRB has had an enormous impact on the way companies can engage with and educate their employees, and that is intentional.
  • The goal under General Counsel Abruzzo  is to limit the opportunity for employers to persuade or influence their employees from unionizing.
• The current NLRB is prioritizing the limitations of employers to have educational meetings with employees about the pros and cons of unionization.
  • These meetings are also known as “captive audience meetings” by organized labor and the NLRB.
  • These meetings can be critical communication vehicles for employers to connect with their employees. 
  • The NLRB is looking to eliminate them, or grant unions fair time to do their pitches inside the workplace. 
• The current NLRB board sees this as “leveling the playing field”, and some Democrats feel employers have the upperhand in communicating with employees. 
  • Some people interpret “leveling the playing field” as meaning that labor unions have the same access as companies to potential collective bargaining members to share their messaging.
  • Business leaders argue that unions can influence employees outside of the workplace, at any time they want. 
  • Access is a hotly contested issue on the NLRB board, and something to look towards on the future agenda.
• The latest memo from General Counsel Abruzzo frames social media monitoring of companies as “surveillant”.
  • Before social media, instant messaging, and other methods that employees use to collaborate today, employees would talk around the water cooler as a forum. 
  • Today, employees can use digital platforms for employees to instantly share their thoughts with each other and online about their workplace.
  • According to the current agenda of the NLRB, companies should face required transparency if the company monitors employees' social media platforms.
    • The board is trying to modernize and be more progressive in the way it handles employers listening to their employees' online activities. This could have an impact on a company’s ability to protect against concerted activity. 
• During COVID, mail-in ballots became the norm for bargaining elections, something companies strongly pushed against for years.
  • While there have been more in-person elections in recent months, mail-in ballots are likely not going away.
  • Companies rejected these ballots because of potential fraud opportunities, unfair influence, etc. 
• General Counsel Abruzzo has attempted to breathe new life into the NLRB’s Joy Silk doctrine.
  • The doctrine would create a burden of proof for employers to make claims there are no majorities in union voting, and would essentially bypass secret elections.
  • This is something that has legs with the current board, and is part of their agenda to redistribute the balance of power in the workplace. This could become an ongoing battle for the NLRB.

How Companies Can Prepare for Change

• The speed of change coming from the NLRB is unprecedented after COVID, workplace dynamics have shifted, worker burnout, and economic instability. These have developed a perfect storm of stress and   strain across all industries, and companies need to be tuned in to potential stressors.
  • Employers need to be engaging and communicating with employees to keep them to maintain the employee experience.
  • Many variables, which were out of the workplace, are coming in, and what worked a few years ago is now irrelevant.
  • Managers should show appreciation and sympathy for employees, and meet workers where they are.
• Training plays a huge role in upscaling leaders and educating employees, but it is unfortunately the first thing to go when budgets are under strain.
  • Tuning frontline leaders and upskilling them to compete are essential to success. 
  • Every industry is facing challenges for leaders, and companies need to recognize the importance of leadership training, and develop real connections. 
    • This investment can prevent potential labor organizing, and can develop a rapport of trust within the workplace.
    • Every leader should have an “elevator speech” ready, presenting a firm position on labor relations, so they can be ready to share that mission with employees. 
• Leaders need to be prepared for the next generation of workers, what motivates them, how they evaluate job satisfaction, and more.
• Companies need to engage with employees about social justice issues, and be transparent with them about where the organization stands. 

IRI Consultants

• IRI Consultants helps organizations manage labor relations and provides companies with effective communication strategies. 
• They prioritize being a thought leader across all of the areas that they support their clients, whether it is in communications, organizational development, leadership development, or labor relations.
  • They capture national trends, creating white papers and thought leadership articles that are available for public consumption, in an attempt to be a little bit provocative, in order to help organizations think about things a little bit differently and modernize their labor relations strategy.
  • IRI tries to pivot organizations to think about labor relations in a progressive, proactive, and employee-centric way, and help companies do the same.

Scott Purvis Background

• Master of Science (MS), Industrial and Organizational Psychology from Kansas State University
• BS, Psychology from Missouri State University
• Early career included working as Human Resources Manager for Walmart, and Director of Human Resources for Novartis
• Mr. Purvis then served as the Vice President of Human Resources for Lowe’s Companies, Inc. 
• He is currently the Chief Operating Officer for IRI Consultants.

Contact

• Scott Purvis on LinkedIn
• Scott Purvis email: spurvis@iriconsultants.com