The National Labor Relations Board (NLRB) has made it known that—much more than in the past—it will embark on rulemaking to set policy. Its recently announced rulemaking agenda provides evidence of the new direction.
The rulemaking priority list, released by the Office of Management and Budget on May 22, notes the Board is not only proceeding with rulemaking already in progress on how to determine joint-employer relationships, it also plans to consider issuing rules in the following areas:
- The Board’s current representation-case procedures;
- The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry;
- The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act;
- Standards for access to an employer’s private property.
Burton J. Fishman, an attorney with Fortney & Scott, LLC in Washington, D.C., says the NLRB has little experience in rulemaking, and its priority list is “a super ambitious undertaking, probably too ambitious.” He also points out that rulemaking is a slow process and can be changed by the next administration. “I think this shows impatience with waiting for cases to establish new precedents,” he says.
Ryan J. Funk, an attorney with Faegre Baker Daniels LLP in Indianapolis, Indiana, agrees the Board’s agenda shows it is going in a new direction. “The Board is clearly relying more on rulemaking than in the past,” he says. Although the NLRB will still adjudicate cases “and that will continue to be the main way the Board shapes our labor laws,” he says the Board “is doing more rulemaking now than I have seen in the past.”
Although rulemaking is a slow process, it does have some advantages. “My favorite thing about rulemaking is it creates more stable policy,” Funk says.
“When a particular area of labor law is a hot topic, sometimes the Board will change it every time a different political party takes control,” Funk says. “That’s easy to do in adjudication, but rulemaking takes so much time and effort, once a new rule is in place it’s unlikely to be undone for many years. One side or the other is usually unhappy with the substance of any particular rule, but everyone benefits somewhat by having stability and predictability in labor relations.”
On some issues, Funk says unions have pushed the NLRB in the rulemaking direction. “They have been withdrawing, settling, or just not filing cases on certain topics where, once faced with a case on that issue, the Board is likely to change the law in favor of employers,” he says. The Section 9(a) bargaining relationships in the construction industry and the standard for determining whether students who perform services at private colleges are employees are examples.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.