With Trump Nominees, NLRB May Revisit Previous Rulings

With President Trump’s nomination of two pro-business attorneys to the National Labor Relations Board (NLRB), giving Republicans majority control, 3-2, observers are speculating that the board will revisit some Obama-era decisions and modify or reverse them. Marvin Kaplan, chief counsel of the independent federal agency, the Occupational Safety and Health Review Commission, was approved by the Senate before it recessed for the summer on a party line vote of 50-48. Left in abeyance was the nomination of pro-business labor attorney William Emanuel, who works for the law firm Littler Mendelson in Los Angeles. Democrats have criticized both men as being too pro-employer. The sitting president’s party is allowed majority representation on boards and commissions such as the NLRB and the Equal Employment Opportunity Commission (EEOC). When the two are fully ensconced at the NLRB, speculation has it that the board will revisit several Obama-era decisions that are pro-employee and pro-labor union. In 2015, the NLRB issued a Final Rule shortening the time between an organizing group’s  petition to unionize and the actual employee vote on whether to do so from 45 days to 25 to 30 days. The resulting so-called “quickie elections” favor the organizers, say business owners, because they give employers less time to mount their side of the campaign. A pro-business Republican NLRB could review this rule and come up with its own new rule, return to the old standard or otherwise better balance the election process between employer and employee bargaining unit. This effort could be a top priority of the newly constituted NLRB. Other cases resulting in rulings that tended to favor employees over employers  could be ripe for review. In a ruling involving Purple Communications, the Obama NLRB held that employees, in their non-working time, could use their company’s email to engage in “protected, concerted activity,” as outlined and permitted in the National Labor Relations Act (NLRA). In another ruling involving Banner Health, the outgoing board held that an employer’s directive to employees not to discuss workplace investigations with other employees violates the NLRA. A case involving Whole Foods led the NLRB to rule that video or audio recordings by employees in the workplace are protected activity under the NLRA. Even though new Labor Secretary Alexander Acosta has reversed his department’s 2016 definition of a joint employer to the previous “direct or complete control” standard, the NLRB still clings to a looser standard called “indirect control.” The board issued that opinion in a case involving Browning-Ferris Industries (BFI). Examples of potential joint employers include the franchisor-franchisee relationship and the staffing agency-hiring company relationship. Congress has been attempting to legislatively reverse the NLRB’s looser definition of joint employer, but a Republican-majority NLRB may beat them to the punch. Another case that could come under the microscope involves a ruling issued against Specialty Healthcare, which allowed the formation of “micro-units” in the workplace to form their own collective bargaining units. For instance, the finance department of a company with only five employees can now form a union even though these personnel sit among a larger staff of 75 persons, as an example. The NLRB is a quasi-judicial body that derives its powers from the National Labor Relations Act (NLRA) of 1935. Board members are appointed by the President to 5-year terms, with Senate consent, the term of one member expiring each year. Prior to Kaplan’s recent approval by the Senate, the board had only three members, two Democrats and one Republican. The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative.