The National Labor Relations Board (NLRB) is a five member agency that oversees labor dispute cases. The board is split between both major parties with the current president deciding the majority vote. President Donald Trump is close to having his choices confirmed to the board, which could mean several things for workers.
Republicans and the business community hope the new board will become more balanced. Former President Barack Obama oversaw what critics argue was an overly activist NLRB. Democrats and unions have expressed concern that the current nominees have shown a clear bias against labor in the past.
Philip Miscimarra was appointed chairman of the board April 24. He was previously a member who was serving as the acting chairman at the start of the administration. Marvin Kaplan and William Emanuel were nominated in June to fill two open seats.
“For the past eight years, the NLRB has operated as an extension of Big Labor,” Workforce Fairness Institute spokeswoman Heather Greenaway told InsideSources. “We agree with the current administration that Marvin Kaplan and William Emanuel are two board nominees who will restore balance back to the NLRB.”
Emanuel currently works as an employment lawyer in Los Angeles for the law firm Littler Mendelson. Kaplan is currently the chief counsel of the Occupational Safety and Health Review Commission. The nominees were able to overcome a recent committee vote and are now just waiting for a final vote on the Senate floor.
The NLRB was able to implement a handful of major changes during the last administration by altering how it ruled on cases. The board focused on how union elections are held, how companies can contract together, and how contract workers are classified.
“I would suspect that the first thing on their plate would be to address some of the problems created by the Obama board, and some of their most damaging actions and decisions,” Peter Schaumber, a former labor board member, told InsideSources. “First and foremost among those, of course, would be the joint-employer decision in Browning Ferris, the micro-union decision in Specialty Healthcare, the quickie-election rule.”
The NLRB was able to implement the changes by updating how it ruled on certain labor dispute cases. The Obama administration argued the changes were designed to better protect workers. Some critics counter the board had simply become overly activist.
“Before Obama, the NLRB really wasn’t making these fundamental changes for a pretty long period of time,” said Ben Gitis, labor market policy director at the American Action Forum. “I just expect them to be much less activist. So they won’t go out of their way to find a case where they can make a fundamental change in something like the joint-employer standard.”
The NLRB was blasted by critics for allegedly showing a bias in favor of unions. The Obama administration often spoke of how critical unions are to protecting workers. Those opposed countered that the decisions actually helped unions at the expense of workers.
“If confirmed, we would expect that the board members would begin to revisit those union-led decisions and rules, such as joint-employer, ambush elections, and micro-unions,” Greenaway said. “All of which have hindered and continue to threaten the American workplace.”
Sen. Lamar Alexander, chairman of the labor committee, recently noted that biased labor boards have been a problem in past administrations, as well. He and others, however, warn the bias went to new extremes during the last administration. Critics hope the next board will be much more moderate.
“These guys aren’t right-wing ideologues,” Randel Johnson, senior vice president of labor at the U.S. Chamber of Commerce, told InsideSources. “They’ll take the board to a more moderate stance. But I would call it middle of the road to slightly right, while I could call the current board way left.”
The Chamber of Commerce released a report earlier this year detailing what recent decisions the new board should revisit. The report argues the changes made during the last administration have imposed new burdens on employers and workers. The report lists micro-unions, joint-employment, union elections, and employer rights, among others issues.
The next NLRB could have a huge impact by readdressing some of those recent decisions. But there’s no indication they will pursue major changes to labor law beyond that. Gitis believes those nominated to the next board will be quiet compared to the last administration.
“Over the last few years under Obama we have had a very activist NLRB,” Gitis said. “I think the most that they will be doing is undoing those decisions. Beyond that, I think it will be very quiet relative to Obama’s years. They may not take up cases that have a fundamental change for labor law the way the NLRB did under Obama.”
Senate Democrats expressed concern during the confirmation hearing that the nominees have shown a clear anti-union bias in the past. The AFL-CIO released an open letter July 18 arguing the nominees will hurt workers by undermining collective bargaining and other union related rights.
“Emanuel has exclusively represented employers, most recently at the notorious union-busting law firm Littler Mendelson,” the AFL-CIO letter stated. “Kaplan has never practiced labor law – his sole experience with labor law is on a policy level, drafting legislation to weaken worker protections.”
A fully-appointed NLRB doesn’t mean the recent decisions will suddenly be reversed. Board members would first have to find a relevant case before issuing a decision that changes how a law gets interpreted. General Counsel Richard Griffin also poses a challenge as he decides most of the cases the board takes.
“A lot of what the board does is driven by the general counsel,” Johnson said. “It’s not like the board can all of a sudden say, let’s reverse Browning-Ferris. They have to have a case in front of them, and the general counsel has to bring that case to them.”
Griffin is a holdover from the last administration. His four-year term doesn’t end until November. He could prevent the board from revisiting those decisions based on the cases he chooses. Johnson adds it will take time before noticeable changes start coming from the new board members.
“I think it’s obviously important the board is getting a makeover,” Johnson said. “It’s as important a new general counsel get installed as soon as possible. Changes will occur, but the changes aren’t going to occur overnight.”
The NLRB decisions do have limitations that could cause problems later on. They could be reversed by future boards or upended by an appeals court. Congress is in a position to draft legislation that better clarifies how these laws should be interpreted.
“I think it will really depend on what Congress is able to accomplish and what happens in the appeals court,” Gitis said. “There are a few bills congressional Republicans are trying to pass that would undo many of the decisions that were made by Obama’s National Labor Relations Board.”
The president has also managed to fill other positions that are critical to his economic agenda. Alexander Acosta was confirmed as the current secretary of labor April 27. Kaplan and Emanuel are now just waiting for a final vote on the Senate floor.