Making the NLRB Great Again?
The National Labor Relations Board under President Obama was very pro-union. The Trump administration has a number of opportunities to reverse course.
The president can immediately nominate two Republican board members. The five-member Board currently has three members (two Democrats and one Republican) and two vacancies for the president to fill. The addition of two Republicans is expected to immediately alter the Board’s ideological outlook.
In November 2017, the president can replace the general counsel. The Board’s current general counsel is pro-union and can profoundly affect the law by: (1) deciding what cases to bring to the Board and what legal positions to take; and (2) issuing instructions to the regions. His term expires on Nov. 4, 2017.
Once the Board has a Republican majority, the following controversial Obama Board decisions, and many others, face scrutiny and possible reversal:
Joint Employer Standard. In Browning-Ferris Indus. of Cal., 362 NLRB No. 186 (2015), the Board adopted a new and controversial standard for determining joint employer status. This standard affects all employers who use contractors or employees from temporary agencies and has potentially devastating implications for the franchise model. Under the new standard, an employer can be a joint employer even if it does not exercise any actual control over the employees of the other employer. This decision has major liability implications because a joint employer is legally liable for the actions of the other employer. Joint employer status can also broaden union organizing opportunities and weaken the law preventing unions from picketing or even striking otherwise secondary employers.
- Micro-Units. The Board in Specialty Healthcare, 357 NLRB 934 (2011), created a new standard to establish bargaining units for a union election. The new standard gives unions more latitude to select their voters, thereby maximizing the union’s chance of winning the election and creating the possibility of micro-units.
- Quickie Elections. On April 14, 2015, the Board implemented new “Quickie Election Rules,” which significantly altered how union elections are processed. The new rules: (1) allow for union elections as soon as eleven days after a petition is filed; (2) create onerous new requirements for employers with respect to processing a petition; (3) limit the issues that can be litigated at a pre-election hearing; and (4) require accelerated and expanded disclosure of employee contact information to the union, including personal e-mail addresses and cell phone numbers. With Specialty Healthcare giving unions a greater ability to pick their voters and the quickie election rules impairing the employer’s ability to respond, these changes created a one-two punch giving unions additional advantages in elections.
- Bargaining. The Board also changed the law in a way that pressures employers to agree quickly to union contracts after a union wins an election. In Total Sec. Mgmt. Ill. 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016), the Board ruled that employers usually cannot issue discipline to employees in the absence of a union contract without bargaining to impasse. This decision gives unions more leverage in bargaining.
- Intermittent Strikes. The current NLRB general counsel has indicated support for intermittent strikes, which are currently legally unprotected because of the significant disruption they can cause to an employer’s operation. Intermittent strikes would greatly increase a union’s bargaining leverage.
- Permanent Replacements. In American Baptist Home of the West, d/b/a/ Piedmont Gardens, 369 NLRB No. 13 (May 31, 2016), the Board jeopardized an employer’s longstanding ability to use permanent replacements during economic strikes by finding that an intent to discourage future strikes was sufficient to violate the law. It is hard to see how any use of permanent replacements could not be claimed to be motivated to discourage strikes. An effective ban on permanent replacements combined with intermittent strikes could make it very difficult for employers to resist union bargaining demands.
Deferral To Arbitration. In Babcock & Wilcox Construction Co., 361 NLRB No. 132 (Dec.15, 2014), the Board changed the standard governing deferral to arbitration to make it much more difficult for employers to get unfair labor practice charges deferred to arbitration and for arbitrators to issue legally binding awards in deferral cases. This new standard frequently would allow unions “two bites at the apple” (both arbitration and an unfair labor practice charge) and would increase litigation before the NLRB (perceived as more pro-union on substance and involving a “free” government lawyer to pursue the case for the union).
Class Action Waivers. Further limiting arbitration, the Obama Board has ruled that requiring employees to waive through arbitration agreements their ability to bring class actions in areas outside those regulated by the Board illegally interferes with the right to engage in concerted activity. Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014). The Supreme Court is expected to decide this issue in the next year or so, but the Trump Board could overrule Murphy Oil in the interim.
Employee Handbooks. Employers whose handbooks contain anti-harassment or courtesy/civility policies (and many other routine policies) have been repeatedly subjected to scrutiny under the Obama Board, which has found that such rules “chill” protected activity. The Trump Board could restore some rationality to this area of the law.
The 2016 election had enormous consequences for labor law. Stay tuned for further developments.
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