Inside the NLRB: Insights from Acting General Counsel William Cowen

In the midst of tremendous change at the National Labor Relations Board (NLRB), HRPA hosted a webinar featuring Acting General Counsel William Cowen, offering an inside look at the implications for CHROs and their workplaces.  

Business as usual – to a point: Following Member Wilcox’s termination, recently upheld after a brief court-ordered reinstatement, the NLRB is now operating without a quorum. While decreasing from a full five-member Board to two members limits its functionality, General Counsel Cowen emphasized that matters below the Board level continue to be “business as usual,” including:  

•  Unfair labor practice charges, including processing, investigation, and prosecution; 

• Union election processing; and

• Administrative law judge decision-making.  

Mr. Cowen noted that only where the Board itself is required to make a decision is it unable to do so due to the lack of a quorum.   

Stay the course: Former PepsiCo VP Carolyn Fisher urged employers and practitioners to continue operating within current law and in their best strategic interest, despite uncertainties surrounding the Board.

Employer-unfriendly policies still in effect: Several Biden-era employer-unfriendly policies – such as Cemex bargaining orders, captive audience meeting bans, and greater handbook scrutiny – remain the law even as the Board transitions away from its previous Democratic majority. Mr. Cowen noted that while he may not wholly agree with such policies, he is still required to enforce them.  

• However, Mr. Cowen acknowledged that his differing views on captive audience meetings, or what triggers a Cemex bargaining order, for example, may influence his enforcement priorities as compared to his predecessor Jennifer Abruzzo.  

• On captive audience meetings, Ms. Fisher recommended that employers continue to hold meetings She noted that such meetings can create questions that can be addressed in other, smaller forums on a voluntary basis through which the employer can still express its views on unionization without running afoul of the law.  

What’s next: President Trump nominated Crystal Carey for General Counsel last week, but the panel noted that the current nomination backlog makes it unlikely that she would replace Mr. Cowen before the Fall if she is confirmed. Meanwhile, the Trump administration has yet to offer any nominations for vacant Board seats, meaning the Board is unlikely to regain its quorum anytime soon.  

Employer takeaways:  

• Union elections can continue and employers can still face charges for unfair labor practices, but final decisions will be delayed until a quorum is restored.

• Biden-era policies remain in place, so employers must remain cautious of issues like Cemex orders and mandatory union meetings. Cowen replacing Abruzzo as the Board’s top cop may offer a departure from the stringently anti-employer approach of the last four years.