On Thursday, January 26, President Trump named Republican Phillip Miscimarra as acting Chairman of the National Labor Relations Board (the Board). Miscimarra was the sole remaining Republican on the Board, along with two Democrats – all of whom had been appointed by President Obama. Miscimarra takes over the chairmanship from Mark Gaston Pearce. Miscimarra has a background as a member of several management-oriented labor and employment law and general practice firms. The Board currently has two vacancies which President Trump will be filling in the coming months, along with the position of general counsel. The term of the current general counsel expires later this year.
Under the Democrat majority, over recent years the Board has reversed an impressive number of long-standing precedents and decided a number of controversial cases. Among those was the Specialty Healthcare case in which the Board announced that it would find “appropriate” so-called “micro-units” consisting of only portions of an employer’s work force at a given location. The effect of that decision was to allow unions to carve out a small segment of a work force and organize that group as a foothold in the employer’s overall work force. That decision overturned decades of precedent under which the Board had generally found appropriate much broader units such as a “production and maintenance” unit in a manufacturing facility.
In its 2015 Browning-Ferris Industries ruling, the Board loosened the test for evaluating joint employer liability for labor violations, and has taken a very broad position on “civility” and “courtesy” provisions in employer policies and handbooks as violating the rights of employees to engage in “protected concerted activities” under § 8(a)(1) of the National Labor Relations Act (the Act). In its Lincoln Lutheran decision, the Board overturned 53 years of precedent by holding that a dues check off provision of a collective bargaining agreement became a “term and condition of employment” and did not end on the termination of the contract.
Member Miscimarra has dissented from those decisions and criticized the Board’s reasoning. The list of decisions departing from long-standing precedent is too long for this article, but some experts have calculated that the Obama Board overturned over 90 cases representing longstanding legal precedents. The Democrat majority also administratively implemented representation case procedures shortening the time period between the filing of a petition for an election and the date on which employees would vote on union representation. That administrative procedure provided organized labor with the “quickie elections” they had been seeking through the new legislation.
With the elevation of member Miscimarra to chair, and the appointment of two new members, it is likely that the Board will start the process of reinstating previous precedent in a number of areas. It may be many months before the two new members are appointed and confirmed, and it may be even longer for the Board to have the proper case with the right factual circumstances in order to consider and overturn precedent established during the past eight years. The appointment of a new general counsel will likely have a more immediate impact on some of those positions since the general counsel directs and controls activities through the Board’s regional offices which are involved in the day-to-day implementation and enforcement of the Act. A return to a more orderly election process through rule-making would afford employers a better opportunity to communicate the disadvantages of union representation, and such a rule-making initiative could come at the direction of a new general counsel.
Although it is not unusual for the Board to change its position on the interpretation of various aspects of the Act with the change in membership (and the Board’s political make-up which accompanies a change in administration), the Obama Board has certainly demonstrated a partisan labor-oriented agenda and overturned an extremely high number of long-standing precedents. The employer community will look forward to seeing the pendulum swing back the other way.