Seyfarth Synopsis: At today’s client symposium, “First 100 & Beyond: Strategy & Planning Summit for Businesses,” Brad Livingston offered insight into the state of the National Labor Relations Board under the Trump Administration.
At today’s client symposium on legal developments after 100+ days of the Trump Administration, Brad Livingston, the Chair of Seyfarth Shaw’s Labor Relations Practice Group, explained that change will occur — albeit slowly — with the National Labor Relations Board (“NLRB” or “Board”). And he said that the question is whether there will be time for a Trump Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency’s history.
Brad explained that while most other agencies that administer federal employment laws may shift their priorities, enforcement agendas, and litigation theories under different presidential administrations, the underlying statutes are ultimately interpreted by the courts. So although the EEOC may advance a new theory under Title VII or the ADEA, the courts will determine what those statutes mean. And even though the federal courts may differ somewhat in their interpretations from time to time, over a longer period those decisions will end up being harmonized as the law gradually evolves. As an example, Brad explained how while Title VII itself has remained relatively unchanged, over time the courts have eventually expanded its reach to cover quid pro quo sexual harassment, then hostile environment sexual harassment, same-sex sexual harassment, and now sexual orientation discrimination.
The NLRB is different in that — rather than the federal courts — the agency itself decides what the National Labor Relations Act (“NLRA”) means, and these decisions by the administrative agency are given great deference by the courts as long as they are a permissible interpretation of the law (even where the court might have decided otherwise). These NLRB decisions principally come from its General Counsel and five-member Board, all of whom are presidential appointees. Historically, the president has appointed from his political party the General Counsel and three of the five Board members, with the two remaining Board members coming from the other political party. Thus, and unlike with other employment laws such as Title VII, NLRB decisions regularly shift back and forth as presidential administrations change between the political parties. So while the NLRA has been essentially unchanged for 70 years, there have been significant swings in how it has been interpreted and applied over that time.
Brad explained that there are two current vacancies on the five-member NLRB. The Board’s Chairman is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019. The General Counsel is a Democratic appointee whose term ends late this year. So for the moment, any decisions reached by the Board will continue to have a Democratic and pro-union majority. And while President Trump has had the opportunity to appoint two additional Republican members to the Board (giving it a Republican majority), in his first 100+ days of office he has not done so. Even after those appointments are made and then confirmed by the Senate, it will take some time for the new Board members to get up to speed and actively participate in decisions. With the Republican Board Chairman’s term coming to an end in several months, his reappointment or any new appointment and confirmation will likewise take time.
So for the moment, nothing has changed at the NLRB. And even when Republican appointees eventually constitute the majority of the Board and its General Counsel, change will occur slowly. While the Board has the authority to use rulemaking (which itself is a time-consuming process), it seldom does so. Instead, the Board typically changes its interpretation of the law in its decisions regarding the unfair labor practice and union recognition cases brought before it. Significant issues that the Board may wish to address need to “percolate” up in cases pending before it before the NLRB can signal a shift from the interpretations of the prior administration. Thus, the Board is limited to deciding the issues and cases raised by employers, employees and unions in individual cases. NLRB precedent does not change where there is no case raising that issue.
Brad noted that over the past eight years, the NLRB has issued scores of rulings that both limit the rights of employers and expand the rights of individual employees and unions far beyond the decisions of any previous Democratic administration. Among many others, he gave examples of decisions that: ban class action waivers in employment agreements; prohibit discipline for certain types of employee misconduct; deem illegal many common employer handbook clauses, policies, and work rules; expand union and employee access to employer and non-employer property; permit employee use of an employer’s email systems for union purposes; expedite union elections; permit unions to seek “micro” or “fractured” bargaining units and restrict employer challenges to them; greatly expand joint-employer status; obligate employers to negotiate discipline with unions during initial contract negotiations; restrict a finding of impasse in labor negotiations; restrict employers from hiring permanent replacements during strikes; expand successorship status and the obligation to assume a predecessor employer’s labor agreement during the sale of a business; limit the interpretation of contractual waivers of the obligation to bargain with a union; and expand employee status and the right to organize to many college students.
Noting that the employer community wants and expects change from the NLRB, Brad cautioned that the current vacancies have not been filled, the confirmation of new Board members will take time, those new Board members will need to get up to speed before issuing decisions, and any eventual changes to the extraordinary NLRB decisions of the past 8 years are dependent on the same issue arising in a future case. He concluded by noting that we can expect change, but both less and more slowly than most employers would like to see.