After the NLRB’s aggressive pro-union stance during President Obama’s term, the Board is poised for change under President Trump. On January 23, 2017, President Trump named Philip A. Miscimarra—the sole Republican of three current Board Members—Acting Chairman of the Board. Further, as the Board traditionally has five Members, President Trump will nominate two Members to fill the current vacancies. Assuming President Trump nominates two Republicans as expected, the Board will have a Republican majority for the first time in over nine years. Although it is unclear how far the Board will shift from its recent pro-union stance, three key decisions could be overturned by a Republican-controlled Board.
There have been numerous Board decisions in recent years that have greatly expanded the reach of the National Labor Relations Act. Several of these decisions have even affected companies with non-unionized workforces. Employers should keep an eye on a few notable decisions, which could be overturned by a Republication-controlled Board. Noteworthy, Acting Chairman Miscimarra dissented in several of these decisions. His dissents could soon reflect the majority opinion of the Board.
As previously discussed here, in the August 2015 decision Browning-Ferris Industries, the Board adopted a new joint employer standard that has had far reaching effects on both unionized and non-unionized workforces. The rule allows for joint employment even when a company may only indirectly control workers or has merely reserved the right to do so. Previously, a company was considered a joint employer if it had “direct and immediate” control over the terms and conditions of employment.
Following the decision, a wave of new joint employer charges have been filed. Yet there is still much uncertainty surrounding the decision, and companies have been cautious in how they coordinate with third parties, particularly with vendors, staffing agencies, and franchisees.
Miscimarra dissented in Browning-Ferris Industries, claiming that the decision would “subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have, to potential joint liability for unfair labor practices and breaches of collective-bargaining agreements, and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts, and picketing.” If Miscimarra’s dissent is any indication, a Republican-controlled Board could restore the previous joint employer standard.
The Board has been aggressive in challenging employee handbooks, even those used for non-unionized workforces. As noted here and here, numerous Board decisions have expanded the types of handbook policies that have a “chilling” effect on employees’ Section 7 rights to discuss the terms and conditions of their employment.
In several dissents, Miscimarra has expressed displeasure for the NLRB’s standard used for examining employer’s policies and handbook provisions. Instead of looking to whether employees “would reasonably construe the language” of an employer’s handbook to prohibit Section 7 activity, Miscimarra suggests the Board use a balancing test weighing the employer’s legitimate reasons for adopting the policy against the adverse impact the policy may have on NLRA-protected activity.
If the future Board adopts Miscimarra’s proposed test or overrules the “reasonably construe” test, employer’s handbook policies will undoubtedly be subject to much less scrutiny by the Board.
Miscimarra has also been critical of the Board’s 2011 decision in Specialty Healthcare, which has allowed certain very small groups of employees to form a union. The decision set forth a two-step analysis for determining whether a proposed bargaining unit is appropriate, and placed a high burden on employers who wish to challenge the make-up of the proposed unit.
Miscimarra has continuously dissented in Board decisions approving smaller bargaining units, urging the Board to overturn Specialty Healthcare. In a 2014 decision, Miscimarra stated in his dissent, “I believe Specialty Healthcare affords too much deference to the petitioned-for unit in derogation of the mandatory role that Congress requires the Board to play ‘in each case’ when making bargaining-unit determinations.” If President Trump’s appointees are indeed more business-friendly, Miscimarra may finally have the support to overturn Specialty Healthcare.
As the Board could be set to have a Republican majority for the first time in over nine years, several recent pro-union decisions could be revisited and overturned. However, any disputes regarding specific Board rulings will have to work their way through the system before the new Board can address the prior rulings. Thus, at this time, companies should continue following current Board rulings while keeping an eye on developments in this area.