NLRB Swings Right
The National Labor Relations Board, soon to be under GOP control, should deliver a measure of certainty and finality, according to pro-employer groups. But it won't happen overnight.
By Tom Starner
Employers nationwide may be optimistically eyeing the pair of National Labor Relations Board appointees likely to be approved by the full Republican-controlled U.S. Senate.
According to one legal expert, however, while the NLRB returning to Republican control will likely favor employers in decisions for the foreseeable future, it still would be prudent to take a wait-and-see approach until something actually happens.
In June, President Donald Trump nominated Marvin Kaplan, of the Occupational Safety and Health Review Commission, and William Emanuel, a partner in the Littler Mendelson law firm, to fill two empty seats on the National Labor Relations Board.
With Kaplan already having full Senate confirmation (expected on Friday) and Emanuel expected to be confirmed soon, it will give the GOP a 3-2 majority on the five-seat Board. Kaplan previously worked as the Republican workforce policy counsel for the House Education and the Workforce Committee, while Emanuel, based in Los Angeles, has worked with a wide range of business clients. In their work, both are considered to be strongly anti-union, according to various media reports.
Not unexpectedly, forces on both sides of the employment law continuum have lined up to either praise or denounce the Kaplan and Emanuel appointments. For example, the US Chamber of Commerce, in a blog posted on its website, said that "[g]iven the amount of uncertainty caused by the NLRB during the previous administration, the business community will welcome a restoration of balance on the Board."
Cicely Simpson, an executive vice president at National Restaurant Association, in a statement said that "Marvin Kaplan and William Emanuel will restore balance and fairness to the National Labor Relations Board.
"The Board is currently reviewing extremely important issues, including joint employment liability . . . and we urge swift confirmation of these qualified nominees."
Representing the pro-employee point of view on the nominees, Sen. Al Franken (D., Minn.), a member of the Senate's health, education, labor and pensions committee that voted 12-11 along party lines to move the nominations forward, said in a post-hearing media report that Emmanuel has defended corporations and "defended their right to invoke and use mandatory arbitration clauses and to prevent employees and classes of employees from going to court."
The AFL-CIO, the nation's largest federation of unions, sent a letter to every senator asking them to oppose Kaplan and Emanuel, writing it did not believe the nominees would approach labor law cases "with an open, unbiased mind."
"The clear purpose and mission of the agency to which they have been nominated -- to protect and encourage the practice of collective bargaining -- nothing in the background or statements of either nominee provides any assurance that either Kaplan or Emanuel would be guided and motivated by this basic mission," the letter said. "Some in Congress and in the business community have launched relentless attacks on the NLRB and sought to get key NLRB decisions and actions overturned. Kaplan and Emanuel have been part of these attacks, and they said nothing at the confirmation hearing to distance themselves from these attacks."
Since Trump appointed Republican board member Philip Miscimarra to serve as the acting chairman of the board in January, Democrats have held a 2-1 majority at the agency's five-member board. Whereas Trump didn't announce his nominees until June, President Barack Obama had named his two NLRB appointees in April 2009, shortly after taking office. Since then, President Obama's appointees have made some controversial 2-1 rulings that employers believe tilted the scales of employment law to favor unions. For example, the NLRB ruled in favor of allowing labor organizers to form "mini-unions" inside of workplaces and held franchises liable for labor violations committed by franchisees and sub-contractors -- the so-called "joint-employer" standard.
Now, with the GOP poised to have a board majority, the expectations are that changes will swing the pendulum in the other direction.
Steve Bernstein, regional managing partner at Fisher & Phillips in Tampa, Fla., says that what most of his clients are hoping to see is "some finality and the certainty" within employment law.
"We do live in turbulent times," he says. "[Over] the past 10 to 12 years, there has been a lot of highly politicized decision-making that makes it hard to do business planning." He also cites "at least a half-dozen big-ticket doctrines that have gone back and forth like a ping-pong ball."
"No matter what side of the fence you're on, certainty is usually a good thing, and that's been in short supply of late," he says.
Bernstein's hope is that the full five-member board picks up the caseload pace, because cases have been backing up. He also mentioned the board's controversial Browning-Ferris Industries and Miller & Anderson ruling, both pro-employee decisions that dealt with joint employer status.
"The million-dollar question is how many of these will truly be undone and how quickly," he says. "And that's more art than science simply because this is not an agency that's very transparent when it comes to the state of cases on the docket, or which decisions are being elevated when. It's not a simple as snapping your fingers."
His advice to employers is to monitor developments weekly and proceed with caution. He also notes that while unions play a predominant role in most of the NRLB discussion, whether pro or con, the tendency to talk about the NLRB and labor unions, while valid, may miss the point to some extent.
"Everyone's got an opinion about labor unions, but I believe even the unions would acknowledge that they're shrinking in size and influence," he says. "The vast majority of NLRB-driven developments I'm expecting possibly will be of greater interest to non-union employers."
That's Bernstein's way of saying that employers should not assume just because they have no unions in their workplace and may never encounter one that NLRB decisions don't affect them. He reeled off hot button issues such as the current board's doctrine on social media, civility rules, class action waivers, the joint employer doctrine, email in the workplace, confidentiality in investigations, etc., as potentially affecting all employers.
"These apply to union and non-union employers alike," he says. "Everything that I just mentioned is probably among those items on the short-list for potential reversal. That will be welcome news if that happens for businesses that, as I said at the outset, have been languishing under a period of uncertainty."
Editors note: This story has been corrected to include an accurate description of the AFL-CIO. Send questions or comments about this story to firstname.lastname@example.org.