Republicans set to influence National Labor Relations BoardPosted On: Oct. 3, 2017 7:24 AM CST
A new Republican majority on the National Labor Relations Board plus the expected assumption of the general counsel post by an appointee of President Donald Trump, are expected to lead to more favorable pro-employer rulings, observers say.
The U.S. Senate confirmed Trump nominee William Emanuel last week. He joins earlier Trump appointee Marvin E. Kaplan, giving Republicans a 3-2 board majority. And while the term of the current acting chairman of the NLRB, Republican Philip Miscimarra, expires in December, when he will be leaving the board, he will be replaced by a third Trump appointee, thus retaining the Republican majority.
Also significant, say experts, is that the term of the NLRB’s current general counsel, Richard F. Griffin Jr., who is a former union lawyer, expires in November. President Trump has nominated Republican Peter B. Robb, a director at Downs Rachlin Martin P.L.L.C. in Brattleboro, Vermont, to replace him.
Observers say in recent years, in an apparent effort to remain relevant as union membership has declined, the agency has moved beyond strictly union activities to address a wide range of other issues, including arbitration agreements, joint employment, social media and handbooks and, with a Democratic majority, had taken a decidedly pro-employee approach.
That is expected to gradually change with the new appointments, experts say.
There will be a “swing of the pendulum to more employer-friendly policies,” said Bennet D. Alsher, a partner at FordHarrison L.L.P. in Atlanta. Many employment attorneys who represent management think “the Obama board went too far in the direction of unions and employees.”
“I would expect that some of the positions that the Obama board has taken on some issues to change in a way that’s more favorable to employers,” agreed Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina.
On social media, for instance, “the Obama board took a pretty aggressive position” and said social media policies that had any tendency to chill employees’ exercise of their rights under Section 7 of the National Labor Relations Act, which gives employees the right to engage in concerted activities for mutual aid or protection, was unlawful, “even if they did not actually chill anybody’s rights,” she said. She predicted that under the new board “they would have to see some evidence of an actual chilling effect.”
“Policies that everyone thought were perfectly fine for many years,” but were not so under the Obama board, “will again be fine,” she said, although it will take time for these cases to work their way up through the NLRB system.
Steven M. Bernstein, regional managing partner with Fisher Phillips L.L.P. in Tampa, Florida, said the appointment of a new general counsel is particularly crucial. The general counsel “really serves as the chief prosecutor of the NLRB, meaning that he or she is ultimately that person who decides” whether certain cases are heard by NLRB judges, and it is those cases that are heard by the board, he said. “They’re the gatekeeper, so to speak.”
Mr. Griffin, as a long-time union attorney, was “more predisposed to sympathize with the interests of organized labor.” It is “safe to assume that whomever takes his place is likely to adopt a view that balances more towards the interests of business, or at least tempers the predisposition of the current general counsel.”
Mr. Bernstein said he would expect to see a shift in the way cases involving issues including arbitration policies and handbooks are handled. They may now be dismissed at one of the 34 NLRB regions without reaching the board level, he said.