NLRB Interregnum

At this writing, the National Labor Relations Board is in a hiatus between the Obama Board and the Trump Board and the U.S. Senate, and many of the bureaucrats at the NLRB too, are wrapping up their summer vacations.
When President Trump came into office last January, the Board had two member vacancies, both for Republicans; it had two sitting Democratic members, Mark Gaston Pierce and Lauren McFerran; and it had one Republican member, Philip Miscimarra. Trump quickly installed Miscimarra as Chairman, but took a surprisingly long time to identify and nominate two new Republican members.
In the meantime, the Board retained its Democratic majority and continued issuing pro-union anti-business decisions, typically by a 2-1 vote with Miscimarra dissenting.
Just before the summer recess, the U.S. Senate confirmed one of the two Republican nominees, Marvin Kaplan (creating a 2-2 balance), and the Senate is expected to confirm the second Republican nominee, William Emanuel, shortly after the recess ends. The Board will then have a 3-2 Republican majority for the first time since early in the Obama administration.
That particular group of five members will not last long, as Miscimarra recently announced that, for personal reasons, he will not accept a second appointment when his term expires in December 2017.
In addition, the term of the Board’s Democratic General Counsel, Richard Griffin, will be expiring in November 2017. There is no doubt that President Trump will appoint a management-side attorney to fill this often under-estimated position – which serves as the gateway to the Board’s consideration of cases presenting issues that the General Counsel would like to have addressed and potentially changed. Griffin has been aggressively pro-union, and extremely active in raising the NLRB’s profile – as just one example, he has turned the NLRB into a national sanitizer of workplace rules that have been customary in American industry for generations.
The pattern established by the Obama Board over the past eight years of regularly reversing longstanding NLRB precedents and taking new and radical approaches to long-settled issues of NLRB law, virtually always favoring unions and disfavoring business interests, has been extensively catalogued. The intense fly-specking of work rules and social media policies has been a genuine annoyance for the business community. But the pieces are now in place, politically, for course correction. It will nevertheless take some time for appropriate cases to reach the Board for decision-making. We hope that the Trump Board will address and reverse such issues as:
• Quickie/ambush elections, micro-units, and restrictions on pre-election hearings.
• The new legal standard for joint employer liability.
• The new duty of employers to continue withholding dues after a collective bargaining agreement expires.
• The new duty to continue health insurance for striking employees.
• The new restrictions on an employer’s ability to use permanent replacements.
• The new duty to bargain with a union over employee discipline before a collective bargaining agreement is settled.
• Increased union representation rights for faculty (and students?) at educational institutions.
Some of the radical decisions by the Obama Board of the last few years are now working their way through the U.S. Courts of Appeals – the federal courts responsible for reviewing actions by the NLRB. The outcomes of such appeals have generally been far more reasonable, realistic, and considerate of the business perspective. Here are some recent examples.
1. Joint Employer Liability. In NLRB v. CNN America, Inc., the U.S. Court of Appeals for the District of Columbia Circuit refused to enforce the Board’s finding that CNN was a joint employer with a contractor because the Board had “applied a standard for determining whether companies are joint employers that appears to be inconsistent with its precedents, without addressing those precedents or explaining why they do not govern.” The D.C. Circuit also has on its docket, for later decision, the Board’s 2015 decision in Browning-Ferris Industries of California, in which the Board overruled, with much fanfare, its longstanding test for joint employer status.
2. Workplace Civility Policies. In T-Mobile USA and Metro PCS Communications, the Fifth Circuit rejected the Board’s ruling that a workplace conduct policy – which required employees to “maintain a positive work environment” and “demonstrate appropriate team work,” and prohibited “failing to treat others with respect” – because a reasonable employee “would understand the rule to express a universally accepted guide for conduct in a responsible workplace.”
3. Unprotected Concerted Activity. The Eighth Circuit rejected the Board’s ruling that Jimmy John’s acted illegally by firing employees who publicly posted bulletins stating that customers’ sandwiches may have been prepared by sick employees, adding: “We hope your immune system is ready because you’re about to take the sandwich test.” The court found this publicity-generating “concerted” activity was disloyal and legally “unprotected” because it targeted the quality of Jimmy John’s product and not its labor relations.
4. Property Rights v. Disruption Rights. In Fred Meyer Stores v. NLRB, the D.C. Circuit, reversing the Board, gave proper weight to a big-box retailer’s property rights – and the union’s contractual limitations – when it had police remove union representatives from a store where they were intentionally disrupting business to enhance the union’s bargaining position. The Board had found this antagonistic activity protected and the removal of the union representatives violative of the NLRA.
Theodore R. Opperwall