Agency priorities change as usual under new administration

The National Labor Relations Board’s current actions will follow its traditional practice of changing its rules to reflect the current administration’s political philosophy, say observers.

During the Obama administration, its policies reflected both Democratic policies and its interest in remaining relevant in a period of declining union membership.

Michael Lotito, co-chair of Littler Mendelson P.C.’s Workplace Policy Institute in San Francisco, said during the Obama administration, “clearly, there was this fight for relevance, but then there was also this extremely expansive way of looking at Section 7 rights,” the provision of the National Labor Relations Act that gives workers the right to organize.

William J. Kishman, of counsel with Squire Patton Boggs in Cleveland, said, “I don’t think that pure politics direct the NLRB’s decision-making process, but Democratic appointees historically view matters from a more pro-union, pro-employer standpoint.”

The NLRB is more politically driven than most agencies “so it’s not unusual for the law to just bounce back and forth between the Democratic and Republican administrations, which in some ways is unfortunate because the law never stays in the same place,” said Christopher V. Bacon, counsel with Vinson & Elkins L.L.P. in Houston.

The agency has become increasingly politicized over the past decade, which “makes for a very volatile regulatory environment,” said Steven M. Bernstein, a partner with Fisher & Phillips L.L.P. in Tampa, Florida.

“It makes it difficult for businesses who depend on certainty in their strategic planning, but that trend doesn’t seem to be slowing down,” he said.