NLRB Rulemaking Trend Could Produce More Stability, Clarity

May 31, 2019

The Trump NLRB has stepped up the agency’s rulemaking activity—a significant development at an agency which, for over 80 years, has operated almost exclusively through case-by-case determinations.

Obama Board got it started:  One of the major initiatives of the previous NLRB was an ambitious rulemaking effort speeding up the union representation election process.  The Board implemented the rules in 2015 after strong opposition from HR Policy and the rest of the business community (who are now hoping the Trump Board will revisit the rules).  When the rules were originally proposed, there was widespread skepticism that an agency with so little experience could manage such an extensive process that eventually resulted in a 733-page rule.

Republican Board takes its turn:  While the Trump Board may eventually turn its attention to the election rules, it has been busy moving rules in other areas, starting with a clarification of the joint employer standard, an effort HR Policy strongly supports.  Also in the works are rules on union access to employers’ property and graduate student labor rights.

But keep in mind:  Over 80 years of case law has resulted in a body of law that requires over 2500 pages of the authoritative Developing Labor Law to explain.  It would likely take at least another 80 years to address all of these issues through rulemaking.  More significantly, efforts to add stability to the law could be undermined if every change of administration produced a change in the regulations.  Even with that in mind, we wish the Board well in its efforts to add clarity where it can to these critical areas.