Outlook 2018: Trump Appointees Usher in New Era at Labor Board

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By Lawrence E. Dubé and Hassan A. Kanu

President Donald Trump’s appointees will control the National Labor Relations Board in 2018, and observers expect major changes in the agency’s philosophy and direction.

Peter Robb (R), the NLRB’s new general counsel, has been on the job just a few weeks but already signaled an intent to review and reverse many of the rulings issued during President Barack Obama’s administration. Employers and business groups criticized those rulings as excessively pro-union or pro-worker.

The board’s newest members, Republicans Marvin E. Kaplan and William J. Emanuel, joined then-Chairman Philip A. Miscimarra (R) in reversing several major Obama-era decisions just before his term ended. The flurry of decisions at the end of 2017 signals the willingness of the new members to take on a major overhaul of board law.

In a series of 3-2 rulings, the new Republican majority rejected the controversial 2015 Browning-Ferris expansion of joint employment under the National Labor Relations Act, and the Specialty Healthcare decision that was blamed for encouraging unions to organize workers in “micro-units.” The board also changed course and announced that it will allow employers’ “civility rules,” and apply a new test to claims that employer policies intimidate workers exercising their rights under the NLRA.

Miscimarra has left the board, but policy on a raft of other issues, including employee protests, company bargaining obligations, and the rights of workers to use employer email systems may change dramatically in 2018 as Robb puts major cases and arguments before a new Republican majority.

New Republican Majority

Republicans Kaplan and Emanuel joined the board in late 2017, and the Senate is expected to confirm another Trump nominee in coming months for the seat vacated by former Miscimarra.

Sources briefed on the process have told Bloomberg Law the president will nominate John F. Ring, a partner at Morgan Lewis & Bockius LLP in Washington.

Kaplan was made board chairman by President Trump shortly after Miscimarra’s departure, which left the board with two Democrats, Mark Gaston Pearce and Lauren McFerran. Confirmation of the fifth board member will create a Republican majority that can revisit—and reverse—much of the board’s work during the eight years of the Obama presidency.

Management lawyers told Bloomberg Law they expect the new leadership to unwind what they see as the excesses of the preceding board.

But Celine McNicholas, a former NLRB official and now labor counsel at the Economic Policy Institute, a worker-oriented think tank, said there could be decisions coming that will “hurt a lot of working people.”

“My fear is that, like so many things we’ve seen in the Trump administration, there will be a knee-jerk attempt to undo anything that was done under Obama without consideration or reflection on what it does to the state of labor law, to workers, or to stability for employers,” she said.

Pearce and McFerran had a similar reaction when the board voted to issue a Dec. 13 request for public comments on revising or rescinding the NLRB’s rules for processing union representation cases. The Republican majority said it hasn’t made any decision about the rules, but Pearce and McFerran said the board is hurriedly and needlessly questioning modernized procedures that have worked well since they took effect in April 2015.

New GC Sets Agenda

Robb sat down for an interview with Bloomberg Law Dec. 4, just two weeks after he was sworn in.

The new GC said he’s “happy with what I’ve seen so far.” He said his work will have two “themes” in 2018—meeting the agency’s budget, “whatever that is,” and striving to make the work of the agency’s field employees (numbering about 1,000) easier.

Robb jumped into his role with a memo to field offices directing them to consult his offices on cases involving precedent set on workers’ rights in “the last eight years” and others involving “significant legal issues.” The directive also rescinds seven agency guidance memos issued by his Democratic predecessors.

The general counsel’s memo targets dozens of controversial rulings for review, including recent NLRB decisions on: the meaning of “concerted” activity under the NLRA; work stoppages on employer property; and access to property by off-duty employees.

Robb has discontinued several “initiatives” set by the NLRB’s Division of Advice, including its position that misclassifying employees as independent contractors is an independent violation of the NLRA. The general counsel has told regional offices that he has discontinued any initiative to extend to employees in non-union workplaces a right to be represented by a co-worker during an investigatory interview that may result in disciplinary action.

Robb has also earmarked for review any cases concerning the duties of an employer to honor a dues checkoff provision after the expiration of a collective bargaining agreement, as well as allegations that an employer has violated the NLRA by imposing discretionary discipline on workers without giving a newly certified union notice and and opportunity to bargain about the discipline.

The general counsel said he wouldn’t call his memo ambitious. “It’s just what I think the GC’s office will face next year,” he said.

“When the majority changes you have to be prepared to argue” new positions on issues “because you don’t know which way the board’s going to go,” he told Bloomberg Law.

Need for Speed

Robb’s predecessors issued similar directives regularly. But Stanford Law School professor and former NLRB chairman William Gould told Bloomberg Law he “can’t recall anything issuing this early” or “anything even resembling this scope.”

McNicholas said the memo also indicates that “this GC plans to move things very expeditiously.” The scope and the sorts of decisions selected for review “after two weeks” is “revealing” as to Robb’s priorities, she said.

Robb told Bloomberg Law he’s unlikely to issue guidance memorandums for stakeholders as his predecessors did, unless he thinks board decisions are unclear.

The memos may seem valuable, but “you have to be correct” about board members’ intent on law and policy, he said.

“Decisions ought to be clear enough that people understand them without further guidance” from me, Robb said.

Stakeholders on All Sides Expect ‘Marked Change’

Meredith Kirshenbaum, who represents employers at Goldberg Kohn in Chicago, told Bloomberg Law she’s prepared for a “marked change” in board decisions.

In an early December interview, Kirschenbaum accurately predicted that the legality of employee handbook provisions and determining joint employer status would be high priorities for the new NLRB.

The board’s recent decisions on unlawful handbook provisions often left employers confused about what they could do—“stuck between a rock and a hard place,” the lawyer said. Until the board changed its approach in its Dec. 14 decision in Boeing Co., the NLRB held that seemingly neutral rules and policies may be unlawful if they’re overbroad and seem to interfere with employee rights under the National Labor Relations Act.

“I think in some instances—not most—that position has some justification,” Gould said, adding that those decisions were likely to be reviewed by a GOP-majority board.

Both he and McNicholas also predicted—correctly— that the board would revisit the subject of joint employer status.

A decision allowing workers to use employer email to discuss working conditions during non-work time is another strong candidate for reversal, Gould said.

Board Drops Hints, Management Attorneys Hope for More

Douglas Darch, a partner at Baker & McKenzie LLP, has an ambitious list of issues he’d like to see the board act on. In an interview with Bloomberg Law, Darch mentioned decisions on collective bargaining and impasse; workplace civility policies; rulings on graduate students as employees; as well as NLRB jurisdiction over religiously affiliated universities.

The Republican board members have pointed to at least two other Obama-era policies that they’d like to reverse in a pair of footnotes in recent decisions. Kaplan and Emanuel have said they’d like to change the current “blocking charge” policy and reconsider the legality of confidential severance agreements for former employees. Those issues could be up next if and when a new, like-minded Republican is appointed.

Darch said he hopes Robb will quickly authorize complaints based on the “outlandish” decisions of the Obama NLRB so they can be reconsidered and rejected.

Howard Cole, a management-side partner at Lewis Roca Rothgerber Christie, told Bloomberg Law he hopes the new members “look at the Obama decisions, reverse the worst, and return the board to a more reasonable view of labor law.”

He anticipates a “gradual shift back to the middle,” as opposed to a radical swing.

McNicholas said Robb’s memo raises troublesome indications for workers and unions, but she remains “optimistic that the board will attempt to live up to its mission to be a neutral arbiter.”

The board members, including the Democrats in the minority, cooperated to quickly complete cases before his term expired Dec. 16, Miscimarra told Bloomberg Law. However, they managed to issue only a few decisions—albeit major ones—and the board enters 2018 with a full docket of still-pending, and impactful, cases.

To contact the reporters on this story: Lawrence E. Dubé in Washington at ldube@bloomberglaw.com; Hassan A. Kanu in Washington at hkanu@bloomberglaw.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Chris Opfer at copfer@bloomberglaw.com

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