By Bradford L. Livingston.

Most labor and employment laws provide employees and employers with a certain degree of reassuring consistency even as the law gradually develops.  While there may be slight differences in legal standards applied in the different federal circuits (that the U.S. Supreme Court may eventually clarify) and occasional “aberrant” or outlier decisions, in general the law develops somewhat consistently over a period of years.  Thus, while Title VII has prohibited sex discrimination in employment since it was first enacted in the early 1960’s, from initially not being read to cover any form of sexual harassment, it has gradually been interpreted to first cover quid pro quo (but not hostile environment) harassment and later to extend to hostile environment harassment as well.  But even as the law has evolved through a series of court decisions, employers have had a certain degree of confidence that they can implement and apply policies that will keep them in compliance with the law.

Unlike other statutes where the courts apply and interpret the law, however, the NLRA is markedly different.  With only a few amendments since it was originally enacted seventy-five years ago (and none in over fifty years), the NLRA is – by design – to be administered pursuant to the “reasonable interpretations” of the National Labor Relations Board (“NLRB” or “Board”) with more limited judicial review. And since the party in power appoints three of the five NLRB members (currently three of the four members, and possibly all of just three remaining members after December) who decide those cases, those reasonable interpretations have a way of changing depending on who occupies the White House. This obviously creates significant issues for employers who may be in clear compliance with current NLRA case law, but find themselves charged with unfair labor practices based on a new or different interpretation of the statute.

For example, for many years so-called Weingarten rights (the right to a witness at an investigatory interview that an employee reasonably believes could result in discipline) did not extend to unrepresented employees.  After those rights were extended to non-union employees under the Clinton administration, the Board later returned to its original interpretation when Bush II appointed a majority to the Board.  Similarly, for decades employers who used the services of contingent or contract workers were not required to bargain on behalf of a combined bargaining unit that included both their own and the contractor’s employees.  That changed during the Clinton administration but again reverted to the prior interpretation under Bush II.  Likewise, while in Register Guard the NLRB decided that employers under certain circumstances may restrict employees’ use of the employer’s e-mail system to distribute pro-union messages, a case is pending that gives the current Board the opportunity to overrule this Bush II decision.  While the current NLRB has not yet ruled on any of these issues, what do you predict it will decide?  In dozens of ways, the NLRA’s interpretation has shifted back and forth subtly and not-so-subtly depending on who is in power.

So rather than having a degree of confidence that it is acting in compliance with the law, employers and their legal counsel must always be cautious in assessing which way the winds are blowing.  And in the current environment, the only thing that is clear is that those winds are headwinds.  Very strong headwinds.  Be forewarned!