Harry I. Johnson III

Johnson joined Morgan Lewis in 2015 as a defense-side labor lawyer after a term on the National Labor Relations Board appointed by President Obama. He is a co-chairman of the firm’s labor-management relations practice.

His docket includes a major effort for client Amazon.com Inc. to push back against employees seeking to unionize a large warehouse in Alabama. In April 2021, the workers voted overwhelmingly to reject the union, but post-balloting challenges over how the election was conducted were ongoing in late July. Amazon.com Services LLC and Retail, Wholesale and Department Store Union, 10-rc-269250 (NLRB, filed Nov. 20, 2020).

Johnson, who keeps a sharp eye on the way labor-management rules are trending, foresees a significant shift at the National Labor Relations Board as the Biden administration installs its candidates in August. “There’ll be fairly major changes upcoming,” he said. “The two labor-side nominees will probably reverse a lot of Trump-era policies.

Johnson estimated that 80 percent of the policies adopted by the Obama NLRB—often over Johnson’s dissent—were reversed when Trump’s nominees took over. “My guess is that decisions by the Trump board related to employer property rights are likely to change.” In 2019, for instance, the NLRB held that employers do not have to allow non-employees to use their cafeterias or similar public spaces for promotional or organizational activities, overturning decades-old precedent.

In a 2014 dissent when he was on the board, Johnson anticipated that move when the majority held that workers could use company email for union activity. He warned in a footnote that the majority’s view could run afoul of constitutional takings rules.

“I pointed out that takings is a big deal in the law,” he said. Purple Communications Inc. and Communications Workers of America AFL-CIO, 21-ca-095151 (NLRB, filed Dec. 11, 2014). Trump’s NLRB reversed Purple Communications in 2019.

Arguably, Johnson’s dissent anticipated the U.S. Supreme Court’s 2021 opinion in Cedar Point Nursery v. Hassid, which held 6-3 that a California regulation granting unions access to an employer’s property for organizing activities was an unconstitutional taking. “The new board will have to deal with this,” Johnson said.

Johnson joined in a 2015 board opinion denying college football players the right to unionize. Northwestern University and College Athletics Players Association, 13-rc-121359 (NLRB, filed Aug. 17, 2015).

But again, he said, things have changed as the U.S. Supreme Court this year backed payments to student-athletes and Biden has tapped for the NLRB David Prouty, a union lawyer and former MLB Players Association general counsel.

“That was anothser big decision that might now flip,” Johnson said. “There will be energetic changes ahead.”

- John Roemer