Recent cases put NLRB on the defensive

During the Biden administration, no executive agency has been more active and aggressive in pursuing the president’s pro-union agenda than the National Labor Relations Board (NLRB). Long recognized as perhaps the most politicized of the agencies, under the effective leadership of General Counsel (GC) Jennifer Abruzzo and with a contracted, four-member Board (with three Democratic appointees), the NLRB has literally rewritten the labor laws of the land.

Wheels turning

Employers now face a challenging legal landscape where anodyne conduct rules are barred, abusive speech permitted, employer speech curtailed, joint employers abound, punitive damages assessed, and virtually any speech or conduct is “protected concerted activity.” Most of these decisions are designed to affect all employers regardless of union affiliation.

Because the wheels of NLRB justice are slow even by Dickensian standards, few of the Board’s decisions have reached the appellate courts, who have the authority to review Board rulings. Those wheels have started to bring those cases to the courthouse, where the Board’s expansive views of workers’ rights are being assessed in a different light.

‘Nonsense’ says the court