Trump Will Need a Year to Reshape the NLRB

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By Lawrence E. Dubé

Nov. 9 — It will take months before American voters learn how their election of Donald J. Trump will affect the National Labor Relations Board and labor relations in the United States.

Trump, whose own business ventures have sometimes tangled with unions and the NLRB, gave few clues during the campaign about his policy views or intentions on labor issues, but he will take over the White House with Democrats holding the principal leadership positions at the NLRB.

The NLRB’s Senate-confirmed members and general counsel are responsible for setting the agency’s policies and priorities, and the new president will be stuck with their decisions until at least late 2017.

If Trump wants to change the NLRB’s leadership, he will have to deal with a schedule of staggered terms set by law, and an often-contentious Senate confirmation process.

Two of Five Seats Vacant

The five-seat board currently only has three members. Chairman Mark Gaston Pearce (D) has a five-year term that runs to August 2018.

Member Philip A. Miscimarra (R) has a term that expires Dec. 16, 2017, and the term of Member Lauren McFerran (D) will end in December 2019.

Republican Harry I. Johnson’s term expired in August 2015, but President Barack Obama never nominated a replacement. Democrat Kent Y. Hirozawa’s term ended on Aug. 27, 2016, but the Republican-controlled Senate never acted on Obama’s renomination of Hirozawa.

Board Could Lose Quorum in 2017

The U.S. Supreme Court held in NLRB v. Noel Canning, 134 S.Ct. 2550, 199 LRRM 3685 (2014) that the board needs a three-member quorum to decide and take final action in unfair labor practice proceedings and union election cases.

If Miscimarra’s term ends without Senate confirmation of a replacement for him or for Hirozawa, the board will have only two members and will lack a quorum.

Senators have sometimes cleared nominations to the NLRB in package deals, including nominees selected by Democrats and Republicans. But Republicans have also been critical of the NLRB in recent years, and some would be happy to see the agency shut down. In its 2016 party platform, the GOP charged that the NLRB has resisted constructive reform and change and is “attacking” the American franchise model of business operations.

Trump could simply not nominate anyone to replace Miscimarra, but agency operations would not be completely halted.

The NLRB has held, with court approval, that its temporary loss of a quorum does not prevent regional directors from continuing to act in cases that can eventually be reviewed by the board when a quorum is restored.

General Counsel in Last Year of Term

Richard F Griffin (D), the board’s general counsel, supervises the board’s field offices has exclusive authority over the issuance of unfair labor practice complaints.

Griffin was confirmed by the Senate in 2013 and his four-year term will expire on November 4, 2017.

Trump is not likely to renominate the Democrat, a former union lawyer. But Griffin can remain in the position until his term expires. At the end of Griffin’s term, Trump can nominate a new general counsel or designate an acting general counsel.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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