On September 25 the U.S. Senate confirmed the nomination of William Emanuel to the National Labor Relations Board (NLRB). This quickly followed the previous confirmation of Marvin Kaplan, thus bringing a full complement to the five-member panel. More significantly for employers, and consistent with long-standing precedent, the sitting president of the United States appoints three members from his political party. Thus as of September 25 the NLRB is composed of three Republicans and two Democrats. This places the NLRB in Republican control for the first time since 2007.
As readers of this newsletter know, under the Obama administration, the NLRB issued a series of rulings that were controversial with the employer community. The so-called “Obama Board’s” rulings gave employers fits over such issues as social media policies, confidentiality policies and agreements, and a host of others. Many employers believed that the “Obama Board” greatly expanded the definition of what was “protected concerted activity” causing even non-union employers to wake up and start following the NLRB’s decisions.
The newest member of the NLRB, Mr. Emanuel, has been a management-side labor and employment attorney for many years. Mr. Kaplan was most recently Chief Counsel to the Occupational Safety and Health Review Commission and previously served as of counsel to Republicans on House of Representative committees dealing with labor matters. These two join sitting member Philip Miscimarra, who also had a long-standing career as a management side labor attorney.
Informed speculation is that these three Republicans will use their majority to try to undo some of the more expansive rulings of the “Obama Board.” By way of example, the “Obama Board’s” decision in Browning-Ferris Industries of California up-ended ears of prior NLRB precedent as to how to analyze joint employment situations and put fear into every employer who contracted out a portion of their workforce. However, member Miscimarra authored a scathing dissent in which he said the majority opinion “rewrites the decades-old test for determining who the ‘employer’ is,” and would consequently “subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have…”
At the Foley & Lardner webinar held immediately following the November election, our lawyers predicted that once the “Trump Board” took hold, the NLRB would revisit a host of these controversial “Obama Board” determinations. Some of those decisions dealt with such issues as certification of very small or “micro” bargaining units and the striking down handbook policies which the NLRB contended intrude on protected concerted activity.
It is important to note that the NLRB rules mostly by deciding cases and very rarely issues regulations. Thus, it will take time to change the direction of the NLRB ship as the board must await cases with relevant factual scenarios to bubble up through the system before they can rule on a particular topic. In fact, employers hoping for immediate relief from “Obama Board” decisions may have to wait a few years. One regulation the “Obama Board” did issue is known as the “Quickie Election Rule” designed to speed up the time from when a union files a petition for recognition until the NLRB supervised election is held. Most observers believe the “Trump Board” will roll those back in some fashion if not outright repeal them.
Meanwhile, over at the EEOC, President Trump has nominated Janet Dhillon and Daniel Gade to fill positions, but both await Senate confirmation. Similar to President Trump’s NLRB appointees, both have Republican bone fides. Ms Dhillon has had a long career in in-house legal positions, most recently as General Counsel for Burlington Stores. Mr. Gade graduated West Point and won medals for his military service in Iraq, where he lost his leg. He served in various roles in the George W. Bush administration including those pertaining to veteran affairs. Mr. Gade has received media attention for his controversial position that offering incentives rather than disability checks to disabled veterans is a better approach to increasing veteran employment opportunities. If these two appointees are confirmed, issues like criminal background checks, employee wellness and LGBT rights will likely receive different treatment from the Trump EEOC.