As covered earlier by HR Legalist, the Trump Administration was expected to make changes to labor and employment law through appointments to federal agencies, including the EEOC and the National Labor Relations Board (NLRB). At the time of the election, the 5-member NLRB had only 3 seats filled (2 Democrats and 1 Republican), giving Mr. Trump the opportunity to create a Republican-majority board.
Mr. Trump’s first nominee, Republican Marvin Kaplan, was sworn in as a Board member in August of 2017. On September 25, 2017, the Senate confirmed Mr. Trump’s second Republican nominee, William Emanuel, to fill the Board’s fifth seat. Mr. Emanuel is a veteran management-side labor attorney who has represented a variety of industries in cases before the NLRB. As expected, the NLRB now has a Republican majority for the first time in nearly a decade. While Democrats criticized Mr. Emanuel’s record as anti-union, his appointment was heralded by Senate Republicans and business groups.
NLRB Chair Philip Miscimarra, also a Republican, is expected to leave the Board in December, leading to a 2-2 split until a new appointment can be made. Before that time, employers are hopeful that the NLRB will reverse or weaken some key Obama-era rulings that expanded labor protections for employees, including:
- The expanded “joint employment” rule established in the Browning-Ferris case;
- The “ambush election” rules mandating shorter union election time periods;
- The Specialty Healthcare line of cases making it harder for employers to challenge smaller bargaining units (“micro-unit organizing”);
- Protections for employees who criticize employers on social media, and scrutiny of employer social media policies and “no gossip” policies as overbroad;
- Protections for employees who surreptitiously record workplace discussions; and
- An expanded test for determining whether a union can obtain witness statements from internal employer investigations.
The NLRB, much like a court, shapes federal labor law through case-by-case decisions on cases brought at the regional level. The Board’s general counsel has the authority to decide which complaints are filed. The four-year term of the current General Counsel, Democrat Richard F. Griffin, Jr., will expire on November 4, 2017, at which time Trump appointee Peter Robb (a Republican) is expected to replace him. In the meantime, cases on appeal from regional Board offices that have been fully briefed can be considered by the Board.
While these changes are likely to shift federal labor law in an employer-friendly direction, it remains to be seen what areas of the law will change, and how quickly. HR Legalist will continue to keep an eye on any decisions issued by the reconstituted NLRB during the next several months and beyond, and how those changes may impact employers.
Michael S. Pepperman is Chairman and a partner in Obermayer’s Labor Relations and Employment Law Department practicing in the area of employment and labor litigation. He can be reached at 215.665.3032 or firstname.lastname@example.org
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or email@example.com