Monday, December 4, 2017

NLRB Nearing Full Capacity Under New Leadership, But Questions Still Remain

In September 2017, the U.S. Senate confirmed William J. Emanuel to fill the last vacant seat on the National Labor Relations Board (NLRB). Emanuel joins recent appointee Marvin Kaplan and long-standing member Philip A. Miscimarra to form the first Republican-majority board since 2009. However, these weren’t the only significant developments to come to the NLRB this fall. On Nov. 8, 2017, the U.S. Senate confirmed Peter Robb, a management-side labor lawyer, to replace President Obama-appointed Richard Griffin as the NLRB General Counsel. 

While many employers have long awaited this swing back to a more moderate (and pro-business) NLRB, the rebalancing may be put on hold again. That is because Miscimarra has announced that he will not seek reappointment to the board when his term expires on Dec. 16, 2017, resulting in a 2-2 tie between Republican-appointed and Democratic-appointed members. With Miscamarra’s retirement from the board, not only will the Republicans lose their majority, but also the NLRB will lose an important member who penned dissents in some of the Obama-era board’s most controversial decisions. 

Because of the potential deadlock at the NLRB, Robb’s recent confirmation becomes even more important for employers. The NLRB General Counsel acts as a prosecutor with unreviewable discretion on the issuance or refusal to issue unfair labor practice charges. The General Counsel also sets NLRB policy by deciding which cases to argue before the NLRB and issuing memoranda instructing the regional offices and their lawyers on the handling of cases and issues the General Counsel chooses to pursue. As a private attorney, Robb has been critical of several of the NLRB’s Obama-era rulings, and will likely use his power to bring cases before the NLRB that could invite reversal of these decisions. 

So which decisions in particular are ripe for reversal? It is difficult to predict how the newly constituted NLRB and General Counsel will prioritize cases, but the following cases and rules from the Obama-era NLRB are likely to be re-examined in short order:
  • Browning-Ferris Industries (relaxing the standard for an entity to be deemed a “joint employer” with another entity)
  • Purple Communications (allowing the use of employer-owned email systems for union organizing)
  • Lafayette Park Hotel/Lutheran Heritage Village-Livonia (broadening employees’ Section 7 rights to engage in protected, concerted activities)
  • Specialty Healthcare (endorsing a “micro-unit” strategy for bargaining units)
  • Pacific Lutheran University (raising the standard of proof for colleges and universities to claim religious exemptions and managerial exemptions in union-organizing campaigns)
  • “Quickie” Election Rules (reducing the amount of time an employer has to respond to a formal union petition for representation)
The next two weeks could be particularly interesting, as the NLRB may wish to fast-track certain cases to have them decided before Miscamarra’s term ends on Dec. 16. Additionally, President Trump will likely name a replacement for Miscamarra soon to restore the Republican-majority on the NLRB. John Ring, a D.C.-based management-side labor attorney has been rumored to be President Trump’s choice, but no formal announcement has been made at this time. We will be sure to provide updates on these important matters, as they will certainly shape federal labor law during the next few years. 

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