NLRB poised to roll back Obama era precedents

  • October 2, 2017

There is some great analysis from POLITICO PRO here on what changes we are likely to see under the guidance of the new Trump appointed NLRB.   We should see an even more rapid pace of change starting in December, when Peter Robb, who will likely be confirmed as the General Counsel this week replaces the union friendly Richard Griffin.

From POLITICO, William Emanuel’s NLRB confirmation last week created the first majority-Republican board in a decade and positioned it to roll back eight years of pro-labor decisions, affecting everyone from graduate student assistants who want to join a union to fast-food workers who want to sue franchisers.

William Emanuel’s NLRB confirmation last week created the first majority-Republican board in a decade and positioned it to roll back eight years of pro-labor decisions, affecting everyone from graduate student assistants who want to join a union to fast-food workers who want to sue franchisers.

The NLRB has five members appointed by the president to five-year terms — three members from the president’s party, and two from the opposing party. The board was in disarray throughout former President Barack Obama’s first term, often lacking a three-person quorum and rebuffed by the Supreme Court when Obama attempted to make recess appointments. But during Obama’s second term, the board hit its stride, issuing a string of decisions and regulations that strengthened the hand of organized labor and of workers generally.

Now, it’s management’s turn, with more than 100 Obama-era NLRB actions targeted for reversal by the U.S. Chamber of Commerce.

In this partisan era, it’s a given that when a political party regains the White House, agency policies will change dramatically. Nowhere does the pendulum swing harder than at the NLRB.

The staggered terms of board members slow the changing of the guard a bit; that’s why President Donald Trump didn’t gain control of the NLRB until eight months into his presidency. The NLRB’s quasi-judicial role further complicates the timing of policy shifts, because typically these come in administrative law rulings for which appropriate cases must be found.

Unlike court precedents, though, the NLRB’s are less binding; the majority has more freedom to reverse rulings it doesn’t like. And reverse them they will. Trump may have been elected with the strongest support from union households since Ronald Reagan, but — as with Reagan, the only former union leader ever elected president — blue-collar support does not translate into pro-labor nominations to the NLRB.

Emanuel previously was a shareholder at the mega law firm Littler Mendelson, which specializes in defending businesses. Marvin Kaplan, Trump’s other NLRB nominee, who was confirmed in August, previously worked for Republicans on the House Education and the Workforce Committee, the Occupational Safety and Health Review Commission, and the Labor Department’s Office of Labor-Management Standards. Both nominations were opposed by the AFL-CIO.

Trump has also nominated a general counsel, Vermont attorney Peter Robb, to replace Obama appointee Richard Griffin Jr. At the NLRB, the general counsel serves as a sort of prosecutor, selecting cases that could set new precedents; it was Griffin who took the lead on altering the board’s definition of joint employment. Robb’s confirmation hearing is set for Oct. 4.

Trump will get the chance in December to put a third Republican on the board when the term of board Chairman Philip Miscimarra expires. John Ring, a management-side attorney from Morgan Lewis, is said to be in the running, and on Friday Bloomberg reported that the White House was also considering California agriculture attorney Mike Stoker.

At the top of the Chamber of Commerce’s hit list of pro-labor NLRB precedents is its definition of joint employment. In 2015’s Browning-Ferris decision, the NLRB made it easier to classify a company a joint employer, jointly liable for labor law violations committed by its contractors and franchisees. Browning-Ferris established that a company could exercise only indirect control over another company’s employees and still be a joint employer. That ruling reversed two 1984 NLRB decisions under former President Ronald Reagan —  TLI Inc. and Laerco Transportation — which themselves reversed definitions of joint employment made still earlier, during an era when partisan divisions on the NLRB were less pronounced.

The battle over joint employment underscores a long-standing problem at the NLRB. Because its enabling legislation is more than 80 years old, and has not been rewritten significantly in six or seven decades, the board tends not to address new problems so much as relitigate old ones ad infinitum.

“It’s a bit of ‘Groundhog Day,'” said Wilma Liebman, a former board member who served as chair under Obama.

Republicans and a few Democrats in the House have proposed a bill, H.R. 3441 (115), that would restore the 1984 definition of joint employment and allow only a business with direct control over another business to be classified a joint employer. The bill is scheduled for a vote in the House Education and the Workforce Committee on Wednesday, but its future in the Senate is uncertain. A House appropriations rider to stop the NLRB from enforcing the joint employer standard may never see the light of day — Congress last month passed a resolution to continue current funding levels — which may leave a future NLRB reversal on Browning-Ferris Republicans’ most plausible path to victory.

Also likely in the crosshairs: a 2015 decision that said graduate student assistants at Columbia University were employees and therefore permitted under the National Labor Relations Act to join unions. The Columbia decision led to organizing drives at private universities across the country, including Harvard, Yale, Cornell and the University of Chicago. (Public universities are unaffected by the ruling because they are part of state government.)

Columbia reversed the 2004 Brown decision by the Bush-appointed NLRB, which in turn reversed the 2000 New York University decision issued under former President Bill Clinton. In the graduate-student cases, management consists of (usually-liberal) university administrators who vigorously dispute graduate students’ right to organize — and who in most instances since Columbia have tied up successful organizing drives with legal challenges. The business lobby and congressional Republicans care less about the Columbia decision than other NLRB decisions, but private universities will surely scout opportunities to revisit it.

The Chamber of Commerce knows that its hit list of 100-plus Obama decisions and regulations, compiled last spring — and guided by the dissenting opinions of Republican board members — won’t be reversed overnight.

“This process is going to be gradual because cases have to bubble up to the board,” said Randy Johnson, the Chamber’s senior vice president for labor and immigration issues. “But I think we’ll start seeing some changes in three months.”

High on the Chamber’s list is the 2011 Specialty Healthcare decision, which paved the way for so-called micro units — unions whose bargaining unit is not an entire workplace but rather a small group of employees who constitute a “community of interest.”

Another target is a 2014 rule designed to streamline union elections by eliminating most pre-election litigation — typically a tactic employed by management. What the business lobby derides as the “ambush election rule” also eliminated a previous 25-day waiting period between when the NLRB ordered an election and when voting took place, and required employers to provide eligible voters’ contact information to organizers.

“We’re very concerned,” said United Auto Workers President Dennis Williams about rulings under a conservative board. “We don’t know what to expect.”

A series of NLRB decisions under Obama ruled mandatory arbitration clauses in employment contracts to be illegal. Federal appeals courts split on that question, and on Monday the Supreme Court will address it in oral arguments for NLRB v. Murphy Oil, which addresses the legality of mandatory arbitration clauses that forbid employees’ participation in class-action lawsuits. If the high court rules narrowly, the Republican-majority NLRB will likely uphold mandatory arbitration more broadly.