December 9, 2019

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Bill Aimed at Removing Authority from NLRB Introduced in the Senate

On October 24, 2019, Senator Mike Lee (R-UT) introduced the Protecting American Jobs Act.  The bill, cosponsored by Senators Tom Cotton (R-AR), Rand Paul (R-KY), Marsha Blackburn (R-TN), Ted Cruz (R-TX), and Marco Rubio (R-FL), would significantly amend the National Labor Relations Act (“NLRA”) by removing much of the authority currently held by the National Labor Relations Board (“NLRB” or “Board”).

Under the NLRA, the Board’s General Counsel is responsible for investigating unfair labor practice (“ULP”) charges, issuing complaints regarding ULP charges, and prosecuting those ULP complaints before NLRB administrative law judges.  Senator Lee’s bill would strip the Board of the authority to prosecute and adjudicate labor disputes, and limit the NLRB to investigating such disputes.  Instead of prosecution and adjudication by the NLRB, Senator Lee’s bill would provide individuals with the right to bring civil actions in the United States district court where the labor violation occurred or, at the parties’ option, the United States District Court for the District of Columbia.  The authority to adjudicate labor disputes would remain with the district courts.

The Protecting American Jobs Act would also significantly curb the NLRB’s rulemaking authority concerning matters other than the internal functions of the Board.  Senator Lee’s bill would prohibit the NLRB from promulgating “rules or regulations that affect the substantive or procedural rights of any person, employer, employee, or labor organization, including rules and regulations concerning unfair labor practices and representation elections.”  The bill would implement conforming amendments to the NLRA and require the NLRB to rescind or revise its regulations as necessary to conform with the amendments.

The Protecting American Jobs Act was referred to the Committee on Health, Education, Labor, and Pensions, which is where similar bills Senator Lee introduced in 2014 and 2015 also landed.  Neither of the previous versions of the bill ever proceeded beyond committee assignment.

“For far too long the NLRB has acted as judge, jury, and executioner, for labor disputes in this country, Senator Lee commented after introducing the bill.  “The havoc they have wrought by upsetting decades of established labor law has cost countless jobs.  This common sense legislation would finally restore fairness and accountability to our nation’s labor laws.”

Passage of the Protecting American Jobs Act would significantly alter the role of the NLRB and the adjudication of labor disputes.  Without significant Republican gains in the 2020 elections, however, the prospect of Senator Lee’s bill ever becoming law is remote.  While such a sea change is unlikely, the labor landscape continues to shift under the current Board.

As covered in previous blog posts, the NLRB is engaged in, or planning to initiate, rulemaking on a number of issues, including the standard for determining joint-employer status, whether students fall within the definition of “employee” under Section 2(3) of the NLRA, and election protection rules concerning the Board’s blocking charge policy, voluntary recognition bar, and Section 9(a) recognition in the construction industry.

At the same time, the Board continues to issue decisions concerning a number of important labor law issues. (See our previous posts: January 28, June 18, October 8, October 15).  In the last year alone, NLRB decisions have resulted in significant changes to the legality of work rules, employers’ ability to implement unilateral changes, union solicitation on employer property, and the status of independent contractors.  If anything can be predicted, it’s that change at the Board is nearly certain to continue through the 2020 elections.

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About this Author

Corey Argust, employment lawyer, Epstein Becker
Associate

COREY P. ARGUST is an Associate in the Employment, Labor & Workforce Management practice, in the New York office of Epstein Becker Green. He provides strategic advice to, and litigates on behalf of, employers.

Mr. Argust’s experience includes:

  • Advising on compliance with the requirements of the NLRA, FMLA, ADA, ADEA, FLSA, WARN Act, OSHA, Title VII, and federal and state wage and hour laws
  • Counseling clients on all aspects of employee hiring, termination, promotion, and reductions in force
  • Preparing employee handbooks, management...
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