Expect Pro-Business Changes in Labor-Management Relations under a New Administration01.20.17
Since early 2014, the National Labor Relations Board (the Board) has implemented and followed an aggressive agenda to increase union access, expand the Board's influence in the non-union setting and provide employees with greater opportunities to challenge business decisions. That agenda has resulted in the reversal of long-standing Board precedent, obstacles to defending against a union campaign, and a battle over collective and class action waivers.
The Board's enforcement efforts in 2017 are still unclear. That said, President Trump will have the opportunity to appoint three of the five members of the Board this year and its general counsel next year, which will set the administration's new labor policy. If President Trump's current appointments are any indication of those to come, his Board appointments will likely include individuals with pro-business leanings. So, what should employers predict for labor/management relations under a new administration?
A More Business-Focused Approach
In 2016, the Board focused on the interplay between workplace policies and Section 7 rights under the National Labor Relations Act (NLRA) - the right of employees to act together to discuss wages, hours, and other working conditions. Consequently, the Board expanded these rights by reversing long-standing precedent in the areas of access to an employer's premises and property, confidentiality, and non-solicitation and workplace rules. Under a Republican majority, prior Board precedent in these areas is expected to be revisited, giving employers more control over: the use of company email, solicitation and distribution on its premises, social media, and employee misconduct. The Board will likely focus more on employers' business interests and, consistent with prior precedent, be less inclined to substitute an employer's business judgment with the Board's.
Eliminating the "Quickie Election" at Some Point
The Board's "Quickie Election" rules, which took effect in 2015, include several major changes to the prior procedure for union campaigns, effectively shortening the period of time between the filing of an election petition and the election. These changes have resulted in increased union success in elections. A Trump-appointed Board could attempt to reverse or modify these rules. It is unclear, however, how long it will take the Board to promulgate a final rule. The Obama-appointed Board issued a Notice of Proposed Rulemaking for the "Quickie Election" rules in June 2011, but these rules were not implemented until April 2015. Absent a legislative fix to overturn these rules through the Congressional Review Act, employers should not expect a reversal or modification to them any time soon. For that reason, management preparedness through self-assessments, election canvassing, and mock campaigns is still critical to react to union campaign efforts effectively and swiftly.
Settling the Dispute Over Class/Collective Action Waivers
In Murphy Oil USA Inc., the Board held that employment-based arbitration agreements containing class and collective action waivers violate employees' Section 7 rights. The Fifth Circuit rejected this position and ruled that these waivers are lawful. The Eighth Circuit and Second Circuit have reached the same conclusion. But, the Seventh Circuit and Ninth Circuit have gone the other way, adopting the Board's position.
On January 13, 2017, the Supreme Court granted petitions for certiorari from the Fifth, Seventh, and Ninth Circuits and will resolve the split in a consolidated proceeding. As currently comprised, the Court would likely split 4-4 over the issue, but whomever President Trump appoints may serve as the tiebreaking vote if she or he is appointed in time. President Trump, for his part, has indicated that he will nominate someone with similar views to Justice Scalia, who wrote the majority opinion in AT&T Mobility LLC v. Concepcion which upheld the enforceability of class and collective action waivers in consumer arbitration agreements. While the result is only an educated guess, rest assured that the ongoing dispute over waivers will be resolved this year or next.