The National Labor Relations Board is alarmingly unfazed by 2016
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The new Trump administration has certainly brought great upheaval to federal agencies in Washington. Indeed, with their Senate confirmation hearings behind them, newly-installed leaders of executive branch agencies are in the early stages of implementing their respective agendas. However, when it comes to the agency that oversees labor-management relations, the National Labor Relations Board (NLRB) continues to operate as if the November elections never happened. Thankfully, there are increasing signs that point to the arrival of the cavalry, and employers are hoping they appear sooner rather than later.

Unlike cabinet-level agencies such as the U.S. Department of Labor, the NLRB is an independent agency over which the president has limited control. Pursuant to federal law, NLRB members are appointed by the president and approved by the Senate for five-year terms. The same is true for the board’s important general counsel, except the general counsel serves a four-year term. Accordingly, new administrations often have to wait for these appointment terms to expire before they can fully gain control of the NLRB by installing their preferred nominees to serve as board members and general counsel.

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Not so this time around. The board that President Trump inherited on Jan. 20 had two existing member vacancies that could have been filled immediately. Roughly five months later, these vacancies remain. This leaves the sole Republican and chair of the NLRB, Philip Miscimarra, outnumbered two to one. That severely limits his ability to reverse course on the spate of unbalanced policy decisions the board has issued over the last several years. Making this challenge more difficult is the fact that former union attorney Dick Griffin will remain as the NLRB’s general counsel until his term expires in early November.

 

So while cabinet-level agencies sputtered along through policy purgatory until their respective secretaries were in place, at least the employer community felt some reassurance that these agencies had hit the pause button on issuing new regulations. In contrast, the NLRB has continued apace with its two-to-one Democratic majority, issuing new decisions and doubling-down on its policy mistakes from recent years. In one recent case, the board allowed — over Miscimarra’s dissent — a union representation election to proceed despite the fact that employees only had three days’ notice of the election.

This case involved the board’s continued application of its 2015 revisions to the procedures governing representation elections. Referred to as the “ambush” election rule by the business community, these changes shortened the time period between the union’s filing of an election petition and the actual election. This abbreviated campaign period limits employers’ abilities to speak with employees about the pros and cons of unionization. And as demonstrated in this case, the rule also deprives employees of a meaningful opportunity to hear both sides of the story.

But the ambush election rule is just one of a multitude of NLRB decisions and initiatives undertaken in the last eight years that warrant reconsideration by a fully-constituted board. The U.S. Chamber of Commerce issued a 160-page tome detailing these policy missteps from the last eight years. A new NLRB won’t revisit every decision detailed in this report, but in addition to correcting the ambush elections regulation, employers are hopeful that a new board will reverse course on two significant issues.

The first is the NLRB’s Specialty Healthcare decision, which allows unions to choose which employees make up a particular bargaining unit, thereby increasing the union’s chances of victory on election day. The decision allows unions to establish micro-unit beachheads within companies to serve as jumping off points for other organizing efforts. Multiple and fractured units within the same workplace will place employers in a continual state of bargaining and under constant threat of labor disruption.

Second is the board’s upending of its bright-line test for determining whether a business entity is the joint employer of another company’s employees. The NRLB’s decision in Browning-Ferris Industries established a broader and more ambiguous joint employment standard that could apply to almost any business-to-business relationship. This means a business that hires another company to provide office cleaning services could be considered the employer of the cleaning crew workers, even though the company does not hire, fire, discipline, pay or supervise those workers. In this way, the board’s new joint employer standard will hold employers responsible for, and require them to bargain over, workers whom they do not control.

Appointments of board members can be politically rancorous, particularly in these hyper-partisan times. Indeed, in the last several years, the logistics surrounding appointments and functioning of the National Labor Relations Board and its general counsel has been the subject of three U.S. Supreme Court cases. This should not deter the administration from sending board nominees to the Senate as soon as possible. Time is running short, uncertainty abounds, and corrections need to be made.

James J. Plunkett is a senior government relations counsel in the Washington D.C. office of Ogletree Deakins. He previously served as director for labor law policy at the U.S. Chamber of Commerce.


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