NLRB remakes labor law

The National Labor Relations Board (NLRB) has been the most aggressive and the most active independent agency of the Biden administration, especially in terms of fulfilling the president’s prounion agenda. The 53% increase in union election petitions over fiscal year (FY) 2021 is a direct result of the public support the Board has given to union organizing activity, support that has been reflected in the General Counsel’s (GC) memoranda and the Board’s formal rulings.
 

Injunctions, employer speech on GC’s dashboard
In recent months, the GC has clarified her hard-edged stance by announcing her office would broaden its efforts to seek injunctions before formal adjudication as part of her general effort to accelerate the Board’s historically ponderous proceedings. More surprising was her allegation that Starbucks’ CEO committed an unfair labor practice by voicing his view in a public interview that the company is better off without unions.

The Board has taken the same dim view of employers’ speaking their minds by ruling that a “captive audience” speech—a speech to employees, on the clock, for which attendance is mandatory—is inherently coercive and, thus, an unfair labor practice. These are all precedent-breaking positions, and the courts have yet to rule on the legality of the NLRB’s expression of its own authority.