Senate Republicans recently confirmed William Emanuel, the second Trump nominee to the five-member National Labor Relations Board (the “Board”), giving the Board a Republican majority for the first time since 2007. Mr. Emanuel’s confirmation follows the September 25, 2017 appointment of Peter Robb, a management-side labor and employment lawyer, as General Counsel of the Board. Each of President Trump’s recent appointments are expected to advance the president’s pro-business and pro-employer policies. In particular, Mr. Robb’s replacement of the current General Counsel, Richard Griffin, is a crucial step towards upending the Board’s recent anti-employer rulings.
The Board’s General Counsel comes with broader responsibilities than the typical general counsel position at any other federal agency. In particular, the Board’s General Counsel is empowered with unreviewable prosecutorial discretion in determining which unfair labor practice charges are pursued as formal complaints. As such, the General Counsel selects which cases are considered by the Board and can therefore control the development of Board precedents. Thus, the General Counsel is the primary gatekeeper for Board policy by choosing which cases to argue before the Board and issuing internal guidance to regional offices and their lawyers on which types of matters to pursue. Consequently, with the appointment of Mr. Robb, the Board is now well suited to start unwinding controversial Obama-era precedents widely criticized by employers as improperly skewed towards labor.
Employers are anticipating that the new Board and General Counsel will reform the following Obama-era precedents:
Browning-Ferris Indus. of California, et al. v. Sanitary Truck Drivers, 362 NLRB No. 186 (2015)
In Browning-Ferris, the Board voted 3-2 to “revisit and revise” its joint employer standard, holding that Browning-Ferris Industries (“BFI”) was a joint employer of workers provided by Leadpoint, an outside staffing agency, at a BFI recycling plant. In ruling that BFI and Leadpoint are joint employers, Browning-Ferris “refined” existing Board precedent regarding its joint employer standard, which previously required an entity to demonstrate actual and direct control over workers to establish a joint employment relationship. Under the new standard announced in Browning-Ferris, a company is a joint-employer if it exercises “indirect control” over working conditions or if it has “reserved authority” to do so. In order words, the mere right to control (even if not exercised) can lead to joint employment. Browning-Ferris is currently pending before the D.C. Circuit, and a ruling is expected soon. Attempts at legislative reform are also well underway—the “Save Local Business Act,” which would amend the National Labor Relations Act and the Fair Labor Standards Act to limit joint employer liability, currently has bipartisan support in the U.S. House of Representatives. If not redefined by the courts or proposed legislation, the new Board may act to redefine joint employer determinations on its own.
“Quickie Election” Rules
In December 2014, the Board announced new rules governing “Representation—Case Procedures.” The rules—which took effect in 2015—have been commonly referred to as “quickie” or “ambush” election rules, as they significantly increased the speed at which the union election process moves. In Associated Builders and Contractors of Texas Inc. v. NLRB, the 5th Circuit Court of Appeal upheld the Board’s “quickie election” rules, meaning that internal policy changes within the Board itself are likely the only currently viable route to reform here. The recent appointment of Mr. Robb may result in a draw back or even an outright elimination of the Board’s 2014 “quickie election” rules.
Specialty Healthcare & Rehabilitation Center of Mobile, 257 NLRB 930, 940 (2011)
In Specialty Healthcare, the Board controversially changed the standard for evaluating proposed workers to more easily organize into narrower units called “micro units.” Specialty Healthcare allows unions to carve out a small segment of a work force and organize that group as a foothold in the employer’s overall work force. In addition, the burden was placed on the employer to prove the appropriateness of the voting unit. The new Board brings potential for a reversion to the Park Manor (1991) test which instead looked at the “community of interest” and the organizational structure of the work performed.
While it is difficult to anticipate the Board and General Counsel’s exact priorities, it is clear that employers are likely to see a more business-friendly shift in the policies and regulations promulgated. In the meantime, stay tuned as employers and unions closely scrutinize upcoming Board developments as they arise. Sheppard Mullin attorneys will continue to monitor these developments and update you as they occur.