Steven Swirsky Quoted in “Quick Confirmations Set Up Early NLRB Policy Shift”

President Joe Biden has swiftly seated worker-friendly Democrats in leadership positions at the National Labor Relations Board, setting the table for a faster⁠— and potentially stronger ⁠— policy pivot than those that followed past changes of administration, experts say.

The Senate on Wednesday confirmed union lawyers Gwynne Wilcox and David Prouty to fill two seats at the NLRB, teeing up a Democratic takeover on the five-member panel as soon as possible following Republican member Bill Emanuel's departure at the end of August. Biden's Inauguration Day decision to remove Trump-appointed general counsel Peter Robb has also enabled a shift in the agency's approach to prosecution much earlier than usual.

Together, these moves signal busy days ahead for the board as its new leaders chip away at a pile of employer-friendly precedent and set out new standards favoring workers on key issues, including the right to take action on the job. …

NLRB general counsel have significant influence over federal labor policy because they decide what cases to prosecute and what legal theories to present to the five-member board. … Ohr initiated a shift at the general counsel's office in the six months before Abruzzo's arrival, nixing several pieces of Robb-era guidance and setting out expansive views of workers' rights.

Steven Swirsky, the co-chair of management-side firm Epstein Becker Green's labor management relations practice, said this shift has already shown up in his interactions with board prosecutors but declined to provide details, citing clients' privacy. But Ohr's public statements about the breadth of workers' concerted activity rights paint the picture, he said.

"There certainly has been an indication — more than an indication — that this is going to be construed much more broadly than historically has been the case," Swirsky said. …

Swirsky, the Epstein Becker attorney, said the early returns under Biden recall the cultural shift on labor relations under former President Ronald Reagan. Swirsky worked at the board from the second half of the Carter administration through the early years of Reagan's term.

This period brought about a sea change in labor relations, through an NLRB policy shift in employers' favor and the cultural fallout from the president's landmark decision to fire 11,000 striking federal air traffic controllers, Swirsky said. Biden's pro-union moves and rhetoric suggest a similar change may be coming, he said. 

"If you do this long enough, you see things come back you never thought you'd see again," Swirsky said. "The potential is there to see those same types of seismic shifts."