What Employers Should Expect from Recent National Labor Relations Board Nominations and Appointments10.24.17
General Counsel of the National Labor Relations Board
President Trump nominated Peter Robb last month to serve as the General Counsel of the National Labor Relations Board (NLRB). Mr. Robb has worked in private practice as a management-side labor attorney since 1995. Mr. Robb also has considerable experience with the NLRB, including working as a field attorney in the Baltimore office of Region 5 of the NLRB and serving as chief counsel to former NLRB Member Robert Hunter. If confirmed, Mr. Robb will replace outgoing General Counsel Richard F. Griffin, Jr., whose term expires on November 4, 2017.
Members of the National Labor Relations Board
Senate Republicans broke a Democratic filibuster in August to confirm Marvin Kaplan as a Member of the NLRB by a 50-48 vote. At the time of his confirmation, Mr. Kaplan was serving as the Chief Counsel to the Chairman of the Occupational Safety and Health Review Commission. Before joining that federal agency, he worked for almost seven years as a Republican staffer for the U.S. House Oversight and Government Reform Committee and U.S. House Education and Workforce Committee. Along with Chairman Philip Miscimarra, Mr. Kaplan became the second Republican to join the NLRB this year. Mr. Kaplan was sworn in on August 10, 2017. His term will expire on August 27, 2020.
In September, the Senate confirmed William Emanuel by a 49-47 vote to serve as the fifth and final NLRB Member. Although he has no prior experience working in the public sector, Mr. Emanuel is a long-time management-side labor attorney who has represented employers before the NLRB for many years. With Mr. Emanuel’s confirmation, Republicans now hold a 3-2 majority on the NLRB. Mr. Emanuel was sworn in on September 26, 2017, and his term will expire on August 27, 2021.
Despite these recent confirmations, the current makeup of the NLRB will be short lived. Chairman Miscimarra, who has served as an NLRB Member since July 2013 and Chairman since April 2017, announced in August 2017 that he will be stepping down from the NLRB when his term expires on December 16, 2017. Given the impending expiration of Chairman Miscimarra’s term, companies should expect President Trump to nominate another Republican in the coming months to replace the Chairman.
What to Expect
Chairman Miscimarra recently expressed his desire to see an increase in the number of decisions released by the NLRB before his term expires in December. Below are three of the more controversial NLRB decisions issued during the Obama Administration that could be on the chopping block:
Specialty Healthcare & Rehab. Ctr. of Mobile, 357 NLRB 934 (2011) adopted a new standard for determining appropriate bargaining units. Under this standard, the NLRB would presume that a bargaining unit was appropriate so long as the petitioned-for unit consisted of a clearly identifiable group of employees. To rebut this presumption and show that additional employees should be included in the unit, an employer would have to show that the employees in the larger proposed unit share an “overwhelming” community of interest with the petitioned-for unit. Brian Hayes, the lone Republican Member on the NLRB at the time, dissented on the grounds that this standard fundamentally altered the manner in which the appropriateness of a petitioned-for unit is determined. He also predicted that the decision would result in the proliferation of untenable “micro-units” in the workplace. Practitioners anticipate that a Republican-led majority may return to the unit-determination standard set forth in Park Manor Care Ctr., 305 NLRB 872 (1991), and similar cases, which applied traditional “community of interest” factors. Those factors included criteria such as common duties, shared skills, employee interchange, frequency of contact with employees, commonality of wages, hours, and other working conditions, shared supervision, bargaining history, etc.
Purple Commc’ns, Inc., 361 NLRB No. 126 (2014) overturned Register Guard, 351 NLRB 1110 (2007) which held that an employer has the right to implement policies regulating employees’ non-business use of its corporate email system so long as these policies did not discriminate against employees for exercising their Section 7 rights under the NLRA. Under the former Register Guard standard, employers’ regulation of its corporate email system was analogous to their regulation of bulletin boards and telephones. In a 3-2 decision, the majority ruled that employees who have access to an employer’s corporate email system during work time also have a presumptive right to use that email system to engage in Section 7 activities during non-work time. An employer can only rebut this presumption by demonstrating special circumstances that make a ban on non-business use of its corporate email system necessary to maintain production or discipline among its employees. Member (now Chairman) Miscimarra and the other Republican Member of the NLRB at the time, Harry Johnson, both issued lengthy and pointed dissents, with Member Miscimarra arguing among other reasons that the majority’s rule was unworkable because an employer’s enforcement of the work time vs. non-work time distinction was practically impossible. Practitioners anticipate that a Republican-led majority may return to the Register Guard standard set forth above.
Browning-Ferris Indus. of Cal., Inc., 362 NLRB No. 186 (2015) departed from 30 years of precedent to establish a new joint-employer standard. Two companies operate as joint employers for purposes of the NLRA if “they share or codetermine those matters governing the essential terms and conditions of employment.” Under the old standard, joint employment status could only be established if a company exercised “direct and immediate” control over the essential terms and conditions of employment to satisfy. In Browning-Ferris, the NLRB held that joint employment status could be established if a company exercised either direct or indirect (i.e., through an intermediary) control. Member Miscimarra, writing for the dissent, strongly disagreed with the decision, criticizing the majority for creating a standard in which joint-employer status could be found based on a company’s potential (instead of actual) control over the essential terms and conditions of employment. Practitioners anticipate that a Republican-led majority may return to the “direct and immediate” control standard set forth in TLI, Inc., 271 NLRB 798 (1984), enf’d 772 F.2d 894 (3d Cir. 1985), and Laerco Transp., 269 NLRB 324 (1984).
While practitioners expect these changes, among others, to be a likely outcome of the NLRB’s changed composition, the standards established during the Obama Administration remain the law of the land. Employers should therefore act consistently with those standards until such time that the current NLRB rules on them. Until then, stay tuned; changes are coming.