What Is Going on at the NLRB and Why Should You Care?

Labor & Employment Newsletter

Client Alert


Why the NLRB is in the News

The National Labor Relations Board (NLRB or the Board), the federal agency responsible for enforcing the National Labor Relations Act (NLRA), was very active during  President Obama’s administration in pursuing policies that were labor friendly and that arguably overturned many years of established labor law. These included policies that applied in settings all the way from franchises to Facebook. The Trump administration, as expected, is taking steps to move the NLRB back toward the middle and perhaps to a more business-friendly position. Since the NLRB is an independent federal agency, the process takes some time and basically depends upon the appointment of Board members and other key personnel who can begin to address labor issues as they arise.

In this issue of the newsletter, we will highlight some of the Board appointments that have taken place this year will and touch on some other key appointments to expect within the next year. Then we will explain why all this matters. We will provide a quick refresher on the NLRA – how it impacts your company, whether you are union or nonunion – and then we will discuss key issues that have been in the news recently.

New Board Appointments

The Board itself normally consists of five members who function like judges. The members have five-year terms, some of which extend into a new term of the president. Typically, the makeup should be a three-member majority from the president’s party and two from the opposing party, but it can take a little time to reach that makeup because these five-year terms have to expire. Because of President Obama’s inability to have nominees confirmed, the Board actually was operating with only three members as his term concluded. There was a two-to-one Democratic majority, however, and the Board was pro-labor as a result.

Since coming into office and as of last week actually, President Trump has restored the Board to full capacity, and there now are three Republican members and two Democrats. President Trump’s appointments have been as follows:

  1. Republican Philip A. Miscimarra, confirmed for a five-year term on August 6, 2013 and appointed as Chairman of the Board by President Trump on April 24, 2017
  2. Republican Marvin E. Kaplan, confirmed August 3, 2017
  3. Republican William J. Emmanuel, confirmed September 25, 2017

Other Appointments

Two other key events will happen within the next year. First will be the confirmation of a new General Counsel for the Board.  President Trump already has appointed Peter B. Robb, a management-side labor and employment lawyer from Vermont who began practicing law in 1976. Before entering into his current private practice, Robb worked as a lawyer within the NLRB. The General Counsel is a key role within the NLRB because he functions like a chief prosecutor. The General Counsel ultimately makes decisions regarding which unfair labor practice charges proceed and which ones do not. The other event that will happen this year will be the appointment of one other NLRB member when Chairman Miscimarra’s term expires. Miscimarra already has announced that he will not serve another term. When President Trump fills that position, it likely will ensure a Republican majority on the Board for at least five more years.

Why All This Matters

Clients often ask why the NLRB matters, especially if the client has had little or no union activity. Do the National Labor Relations Act and the Board guarantee workers higher wages, freedom from discipline, and big pensions? Well, no.

The basic concept of the NLRA is the right of employees to act in a group. When employees act in a group, or collectively, that increases their economic bargaining power with their employers. This “concerted activity” enables employees to negotiate for better wages and working conditions. To protect this right of employees to engage in concerted activity, the law developed by the NLRB is quite extensive, and fundamental principles have been established. These include employees’ right to criticize their employers, the right to organize, the right to form a union, the right to request information, the right to demand bargaining, and the right to strike. Employees further are protected from discrimination for engaging in any of these activities. These protections apply to most all employers, whether they have an established labor union or not. For example, discharges for employees not coming to work, if they are engaged in protected concerted activity, can violate the NLRA even if the employees are not in a union.

During the course of the previous administration, the Board took an expansive view of employee protections under the NLRA. Criticism of employers or supervisors, for example, was highly protected, whether or not that criticism was particularly civil and whether or not it was quite public, such as on social media. The Board under President Obama held that employees could use company email for union activities. To further help union organizational efforts, the Board took new approaches to the size of bargaining units which could help a union receive a majority of votes of the employees in the unit. Likewise, the Board shortened the time between a union demand for a recognition election and the actual vote which can prevent employers from having adequate time to respond to this union activity. The Board took a very expansive view of the joint-employer concept, holding that two separate companies could be liable for the actions of the other if there was only a possibility of control by one over the other without regard to whether there ever was actual control or input into any employment decisions across corporate lines. Finally, as another example, the Board was active in holding that employees could not agree to waive their rights to file class-action lawsuits and to pursue their employment claims on an individual basis only. Again, all of these employee friendly policies apply to private employers whether they have a union in place within their company or not.

Now, with a shift back to a Republican Board and to a Republican General Counsel, we expect a shift back away from many of these positions taken by the Board in the previous eight years. Some of the changes will take a little time because matters will have to arise for the Board to rule upon. Some modifications of the policies of the prior administration might come fairly quickly, such as moving away from the “quickie election” rule. The class-action waiver issue actually is now before the (Republican-controlled) Supreme Court, so it will be interesting to see how that issue is resolved now that a Republican administration is representing the Board in that case rather than a Democratic one.  We will continue to keep all of our clients posted on these important NLRA developments.