The DC Circuit Court, in its August 11th decision in Rhino Northwest, LLC v NLRB has found that the NLRB’s 2011 Specialty Healthcare decision revisiting the Board’s standards for determining whether a bargaining unit a union seeks to represent is appropriate, where the employer claims in excludes other classifications of employees who share a community of interest with the petitioned for employees, is supported by the National Labor Relations Act and that the “overwhelming community of interest” standard that the Board adopted in that case is entitled to deference and should be followed.

The Specialty Healthcare Holding

The NLRB’s 2011 Specialty Healthcare decision is frequently referred to as the “micro-unit” case. In Specialty Healthcare, the Board held that for an employer to establish that a unit is not appropriate and must include other classifications, the employer must prove the petitioned for unit is “truly inappropriate” and that the additional classifications the employer contends must be included in the unit share “an overwhelming community of interest” with the petitioned for classifications.   Many saw this as a contradiction to the long standing proposition that the extent of organizing or support could not be the basis for finding a group of employees to be an appropriate unit and a results driven decision by the Obama Board, intended to allow unions to gain footholds within employers’ workforces by achieving bargaining rights for small pockets of workers.

The Facts in Rhino Rigging

In Rhino, which is a concert equipment setup company, a local of IATSE, a union representing stagehands and theatrical professions, petitioned for an election in a group of “riggers” employed by the company at a location in Washington State. The employer argued that a unit of just riggers, employees who use motors to hoist and position overhead equipment at concerts and theatrical events, was not an appropriate unit, and that the “overwhelming community of interest” standard adopted by the Board in Specialty Healthcare was inconsistent with the National Labor Relations Act (NLRA or Act”) and that in any case, that the riggers shared an overwhelming community of interest with the other classifications they worked with– camera, lighting, and forklift workers – and that a unit composed only of riggers was “truly inappropriate.” The Regional Director disagreed and directed an election in the rigger unit, the union won the election, and Rhino refused to bargain, in order to test the certification and, ultimately have its arguments considered by the D.C. Circuit.

The DC Circuit’s Rhino Rigging Decision

In short, the DC Circuit rejected all of Rhino Riggings’ arguments, finding that “Because a legitimate basis exists for excluding non-riggers from the bargaining unit,” it would sustain the Board’s order, in which it held that the company was obligated to bargain with the union for the unit of riggers.

As the Court pointed out, under the Board’s unit determination case law, “two considerations determine the prima facie appropriateness of a proposed unit.”

First, the employees must be “readily identifiable as a group” based on factors such as “job classifications, departments, functions work locations [or] skills. Second, the petitioned-for employees must share a “community of interest.” The Board “weigh[s] all relevant factors on a case-by-case basis” to determine whether a set of employees are sufficiently alike to constitute an appropriate bargaining unit.

Noting that there can in many circumstances be more than one appropriate bargaining unit, the Court reaffirmed that a unit need not be the most appropriate unit, and that under the Board’s overwhelming community of interest standard, for an employer to successfully challenge a petition seeking a unit it considers “underinclusive,” it must demonstrated that the proposed unit is “truly inappropriate” because the excluded employees share an overwhelming community of interest under the standard adopted in Specialty Healthcare.

The Court rejected Rhino’s argument that the “overwhelming community of interest” standard “runs afoul of the Act,” and its contention that even under that standard, the riggers shared an overwhelming community of interest with the other classifications.

What Happens Next?

With the DC Circuit’s decision, a total of eight Circuit Courts have rejected claims that the Board exceeded its authority in Specialty Healthcare and that the standards adopted in it are not supported by the Act.

For employers that were holding out hope that the DC Circuit was going to turn the tide on Specialty Healthcare and reject or redefine the “overwhelming community of interest” standard, the Rhino decision is a setback. It is certainly possible that a Court in another circuit which has not yet passed on Specialty Healthcare could still find that the test is not supported by the Act.

That said, at this point, the most likely way that change will come will be from the Board itself, once a Republican majority is in place, which should be this year. On May 10, NLRB Chairman Miscimarra issued a dissent in Cristal USA, Inc., in which he explicitly articulated his belief that “Specialty Healthcare was wrongly decided.” He went on to note that the unit in certified in Cristal was one he did not believe was an appropriate unit, and that this was concerning to him because it “promotes instability by creating a fractured or fragmented unit.”

As the Board moves to a new Republican majority, there is every reason to believe that the holdings in Specialty Healthcare will be reexamined from the point of view articulated in the Chairman’s dissent in Cristal and other cases.

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess. The cloture vote kicks off a 30-hour period of debate. A final confirmation vote will then be scheduled.

The delay in moving forward on Emanuel’s nomination is the result of several Democrats stalling by raising partisan concerns that Emanuel’s history as a management-side lawyer somehow creates a conflict of interest, notwithstanding their prior support of Board nominees who have had lifelong careers as attorneys for unions, and indeed in numerous other instances, attorneys who represented employers. For example, current Member Mark Gaston Peace was longtime union lawyer and the current NLRB General Counsel Richard Griffin, Jr. was the General Counsel of the International Union of the Operating Engineers and a member of the board of directors of the AFL-CIO Lawyers Coordinating Committee.

Emanuel is expected to be confirmed in September despite the delays.

As discussed in our earlier advisory, if the nomination of Emanuel is confirmed by the Senate, which seems likely as of now, the NLRB will not only have its first Republican majority in nine years, it will return to full strength at five members. As cases come before the Board for its consideration, the NLRB will likely reconsider many of the decisions of the Democratic majority Obama Board. However, as we have noted, NLRB General Counsel is expected to serve out his four year term and remain in that critical post, in which he decides in many respects, which issues are litigated and presented to the Board, through November 3, 2017.

As we noted in our earlier blog, the Board is likely to consider a number of significant legal issues once the final vacancy is filled, including the NLRB’s standards for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA”), the Board’s standards for determining what are appropriate units for collective bargaining including a review of the so-called “mircro-units” approved by the Obama Board, the status graduate students and research assistants as employees under the NLRA with the right to collective bargaining, and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

Since the National Labor Relations Board’s (“NLRB” or the “Board”) 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, in which it adopted a new, far less stringent test for determining joint-employer status under the National Labor Relations Act (“NLRA”),  employers have been left wondering whether they may be held to be a joint employer of temporary or contract workers that they retain through staffing and temporary agencies.

These concerns have been echoed by employers in other contexts as other agencies, such as the United States Department of Labor (“DOL”) and the Equal Employment Opportunity have taken similar positions, seeking to expand the concept of joint employer with respect to statutes and regulations they enforce. Notably, both the DOL and the EEOC filed amicus briefs in support of the NLRB’s position with the D.C. Circuit Court of Appeals, which is considering whether the NLRB exceeded its statutory authority in Browning-Ferris.

While the loosened standards for determining joint employment remain under consideration by the courts, members of Congress are now seeking to use the power of the purse strings to force the NLRB to discontinue its use of the relaxed standards it adopted in Browning-FerrisLegislation considered yesterday by House Republicans would do away with this expansion of joint employer liability and provide much needed clarity for employers on this issue.

What is the NLRB’s Browning-Ferris Standard for Finding Joint-Employer Status?

The Browning-Ferris decision expanded the definition of joint-employer to hold that if an employer, referred to as the primary employer, merely possesses, but does not exercise, the right or ability to directly or indirectly codetermine the terms and condition of employment of the employees of another employer, referred to as the secondary employer, the primary employer will be held to be the joint-employer of the secondary employer’s employees.

This holding impacts a wide range of workers, such as employees of business arrangements including the use of contractors, retention of personnel through staffing agencies and temporary employment services, and, if the “primary employer is a franchisor, personnel employed by the franchisor’s franchisees. As the Board pointed out when it decided Browning-Ferris, in its view “the current economic landscape,” which includes some 2.87 million people employed by temporary agencies, warrants a “refined” standard for assessing joint-employer status. As the majority put it: “If the current joint-employer standard is narrower than statutorily necessary, and if joint-employment arrangements are increasing, the risk is increased that the Board is failing what the Supreme Court has described as the Board’s ‘responsibility to adapt the Act to the changing patterns of industrial life.’”

While the National Labor Relations Board’s ruling in Browning-Ferris is now before the United States Court of Appeals for the District of Columbia Circuit, where the court has been asked to find that the NLRB’s test is not supported by the terms of the NLRA or the common law definition of employer, which is an element of the Browning-Ferris standard itself, recent activity from House Republicans may result in legislative action establishing a new, far narrower standard for determining joint-employer status.

Congress Seeks to Use the Appropriation Process to Force the Board to Discard Browning-Ferris’s Indirect Control Standard

House Republicans have introduced new language in a draft spending bill – that among other things, would set the NLRB’s appropriation for 2018 – to direct the Board to set aside what many in the business community find to be one of the most objectionable parts of Browning-Ferris.

The House Education and Workforce Committee held a hearing on Wednesday, July 12, 2017 to discuss the barriers to job and business growth created by the “indirect control” standard of joint employer liability. Small business owners and other employer representatives testified that the joint employer standard threatens their ability to expand, and encouraged the committee to introduce legislation that would define employees as those workers that the employer has direct or actual control over.

On Thursday, July 13, 2017, the House Appropriations Committee on Labor, Health and Human Services, and Education voted along strict party lines to approve a markup of their draft spending bill for FY 2018, which would prohibit the NLRB from using the “indirect control” standard in making joint employer determinations and would require the Board to revert to the “direct control” standard. The Appropriations Committee describes the legislation in its press release and on its website as including

two policy provisions to stop the NLRB’s harmful anti-business regulations. The provisions include: A provision that prohibits the NLRB from applying its revised “joint-employer” standard in new cases and proceedings; A provision that prevents the NLRB from exercising jurisdiction over Tribal governments.

This provision, along with the Committee’s proposal to reduce the NLRB’s budget by $25 million (from $274 million to $249 million) will face strong opposition from the Democratic minority, organized labor, unions, and employee lobbying groups. Of course at this point it is not at all clear whether in fact there will actually be a budget for the new fiscal year or, instead, Congress will again adopt a continuing resolution to keep the government running.

What Should Employers Do Now?

Employers and their representatives should of course continue to pay close attention to the budget process and other legislative action, while waiting for Congress to take action on the President’s nominees to the two vacant seats on the NLRB.   There is every reason to believe, assuming Willian Emanuel and Marvin Kaplan are confirmed and take their seats on the Board, that they, like Chairman Philip Miscimarra, who wrote a vigorous dissent in Browning-Ferris, will share the Chairman’s belief that the standard adopted in that case was incorrect and should be set aside. At this time, however, it would be nothing more than speculation to predict when the new Board majority will have an actual case before it in which these issues are present.

In the meantime, employers are advised to review the full range of their operations and personnel decisions, including their use of contingent and temporary personnel supplied by staffing and similar agencies to assess their vulnerability to such action and to determine what steps they make take to better position themselves for the challenges that are surely coming.

Equally critical, employers should carefully evaluate their relationships with suppliers, licensees, and others with which they do business to ensure that their relationships, and the agreements, both written and verbal, governing those relationships do not create additional and avoidable risks.

This post was written with assistance from Sean Winker, a 2017 Summer Associate at Epstein Becker Green.

On Tuesday night, the President announced the nomination of William Emanuel, a long time management-side labor employment lawyer, to fill the last remaining vacancy on the five-member National Labor Relations Board.

As we noted in our earlier blog, last week the President announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to fill the other vacancy on the NLRB.

If the nominations of Messrs. Emanuel and Kaplan are confirmed by the Senate, which seems likely as of now, the NLRB will not only have its first Republican majority in nine years, it will return to a full strength at five members. As cases come before the Board for its consideration, the NLRB will likely reconsider many of the decisions of the Democratic majority Obama Board.  However, as we have noted, Richard F. Griffin, Jr., who was appointed as the Board’s General Counsel, is expected to serve out his four year term and remain in that critical post, in which he decides in many respects, which issues are litigated and presented to the Board, through November 3, 2017.

The nominations of Messrs. Emanuel and Kaplan will now go before the Senate Committee on Health, Education, Labor & Pensions, where they are expected to be advanced.

As discussed in our earlier advisory, the Board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (“NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining, and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

The President earlier this week announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to serve as a Member of the National Labor Relations Board. Mr. Kaplan is a Republican and once confirmed, his taking a seat on the Board will be an important step in the move towards a more employer-friendly Republican majority that can be expected to reconsider many of the decisions of the Democratic majority Obama Board. Mr. Kaplan’s nomination is for the seat most recently held by Member Harry Johnson, and will be for a full five year term continuing into 2022.

The nomination is now before the Senate Committee on Health, Education, Labor & Pensions, where it is expected to be advanced. Committee Chairman Lamar Alexander of Tennessee expressed his support, stating “Marvin Kaplan has the qualifications to be an effective member of the National Labor Relations Board. Once Mr. Kaplan’s nomination paperwork is received, the Senate labor committee will move promptly to consider his nomination.” It is not yet known however when that will occur.

As we reported last month, the President is also expected to nominate management side labor lawyer William Emanuel for the other vacant seat on the Board.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (“NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face-to-face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in violation of the National Labor Relations Act (“NLRA” or the “Act”),  and thus could support a finding that the employer committed an unfair labor practice (“ULP”).  The Board noted that the employer had offered “no reason why the Board should provide a safe harbor for coercive employer messages via text messages.”

The Act’s Protection of Employee Activity

The Act provides all employees with the right to engage or refrain from engaging in protected, concerted activity, that is activity concerning their terms and conditions of employment, including but not limited to the right to join and be represented by unions and to engage in collective bargaining with their employers. It is well established that these rights, which are provided for in Section 7 of the Act, protect and apply to employees in both unionized and non-union settings.  The Act prohibits both employers and unions from engaging in conduct that interferes with employees in their exercise of their Section 7 rights.  Under Section 8(a)(1) of the Act, it is an ULP for an employer or its agents to restrain or coerce employees in the exercise of their Section 7 rights.  For example, it is unlawful for an employer to interrogate an employee about his or her support for a union or that of other employees.  It is a violation of Section 8(a)(3) of the Act for an employer to terminate, discipline or otherwise take action against an employee because of his or her exercise of Section 7 rights.

The case in question arose in the context of a union organizing campaign by Laborers Union Local 79 among employees of RHCG Safety Corp. (also known as Redhook Construction Group). The union had petitioned the NLRB for a representation election, in which employees were to vote on whether they wanted Local 79 to become their bargaining representative. During the campaign, an employee texted his supervisor, to inquire about returning to work after an approved leave of absence. The supervisor replied by text, “U working for Redhook or u working in the union?” According to the unanimous Board decision, in which Chairman Miscimarra joined with Members Pearce and McFerran, an employee would understand the supervisor’s message to strongly suggest that working for Redhook was incompatible with supporting or working in the union.  The Board therefore agreed with the Administrative Law Judge (“ALJ”) who had conducted the ULP hearing, that the text message constituted an unlawful interrogation and violated Section 8(a)(1) of the Act.

In its exceptions to the ALJ’s decision Redhook argued to the Board that a text message could not constitute an unlawful interrogation, but according to the Board’s decision, Redhook failed to offer any reason to support its position that a text message could not support a finding of an unlawful interrogation.  The Board rejected Redhook’s contention, finding “an unlawful interrogation need not be face-to-face.”   The Board also rejected the argument that the text message at issue was inadmissible at the ULP hearing because the screenshot of the text offered by Counsel for the General Counsel did not include the entire communication between the employee and his supervisor.  The Board reasoned that the Federal Rules of Evidence permit introduction of only a part of a writing, and there was nothing in the record to suggest the text message at issue was incomplete or that the “missing” text messages could have negated the coercive nature of the “are-you-for-the union” inquiry.

What Should Employers Do Now?

The Board’s decision highlights the need for employers to carefully consider how to communicate with employees in the ordinary course of business and during an organizing campaign. Given the issues workplace texting presents for employers, it is advisable for employers to review their communication policies to make clear what methods of communication are allowed in the workplace.  Employers should also review their record retention policies to make sure that all permissible mediums of communication are covered by the policy.  Texting is a casual form of communication. To the extent employers permit text messaging among employees, it may also be necessary for employers to remind employees that text messages are workplace conversations, and the dos and don’ts applicable to face-to-face meetings and telephone calls apply equally to text messages.  Employers should also pay even greater attention to all forms of communications, both formal and informal, and by the company as well as by supervisors and managers whose actions and statements can be attributed to the employer, in the presence of organizing or other union activity.

According to news reports, the Trump administration has submitted Marvin Kaplan and William Emanuel for FBI background checks, and it plans to nominate them by June to fill a pair of vacancies at the National Labor Relations Board (“NLRB”).

The administration hopes to have the new members confirmed by the Senate before the August recess.

Kaplan is currently counsel to the commissioner of the independent Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

Emanuel is a shareholder at the management firm Littler Mendelson PC in Los Angeles. He has represented business groups seeking to invalidate state laws that his clients say allow unions to trespass on their property.

The five-seat board currently only has three members: Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D). The vacant seats are reserved for Republicans. The Board is generally composed of three Members of the President’s party and two from the other party.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act “(NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

While this will ultimately be a welcome change to employers, for those with cases pending the current union leaning majority may still have several months to issue Obama-era type decisions.

As we recently reported, Dish Network, LLC unwittingly fell into the trap of a stipulated record, which proved fatal to its defense of a confidentiality admonishment issued to a suspended employee. The stipulated record in Dish Network, LLC did not set forth any business justifications for the confidentiality admonishment – an indispensable element in proving the lawfulness of such orders. Dish Network endeavored to cure this deficiency in its post-hearing brief, but the Board rejected its belated effort, in part, because the stipulated record was silent on this issue. This case served as a reminder that employers should exercise extreme caution before submitting to a stipulated record and voluntarily curbing their ability to proffer contextual evidence at a hearing to justify its workplace rules.

The Majority in Mercedes-Benz U.S. International, Inc. Holds That an Employer Has the Right to Present Contextual Evidence at a Hearing Which Might Justify a Facially Overbroad Rule

In Mercedes-Benz U.S. International, Inc., the Board recently reaffirmed employers’ rights to present contextual evidence at a hearing when defending workplace policies and rules. In this case, the General Counsel challenged Mercedes-Benz’s rule banning cameras and video recording devices in its vehicle manufacturing plant without prior authorization. The General Counsel argued this rule was facially unlawful because it banned all recordings – with no exception for protected concerted activity – and filed a motion for summary judgment.

Mercedes-Benz defended the motion by arguing that it must be permitted to present contextual evidence at a hearing. Mercedes-Benz asserted that the rule not only furthers its legitimate business interests – including the protection of proprietary and confidential information, the maintenance of safety and production protocols and open communication – but, through “candid communication between employees and managers at daily meetings,” employees also understood that the rule was not intended to curtail protected concerted activity. Without a hearing, Mercedes-Benz would be deprived of the opportunity to establish these crucial contextual details.

The majority, comprised of Chairman Philip A. Miscimarra and Member Lauren McFerran, agreed. In a rather terse footnote, the majority explained its reasoning:

In previous decisions implicating similar rules, the Board has permitted employers to adduce evidence regarding asserted business justifications and about whether the rules were communicated or applied in a manner that clearly conveyed an intent to permit protected activity. [Citations] Because the Respondent has raised similar arguments here, we give the Respondent the same opportunity to adduce evidence at a hearing.

The Dissent Argues That a Facially Overbroad Rule Obviates the Need for a Hearing

Member Mark Gaston Pearce dissented. Pearce argued that Mercedes-Benz’s “weak” contextual argument did not warrant a hearing because “[t]he Board has consistently held that the mere maintenance of an overbroad rule such as the rule here tends to impermissibly chill employee expression.” Pearce also dismissed Mercedes-Benz’s purported justifications. First, Pearce explained that Mercedes-Benz’s “asserted business interests are inadequate because the rule…is not tailored to address only those concerns and to exclude Section 7 activity.” Second, Pearce attacked Mercedes-Benz’s proffering of its “open communications” to employees which purportedly conveyed that the rule did not preclude protected activity.

[Mercedes-Benz] argues only that it discussed unspecific business management issues with employees at the daily meetings. It does not assert that it instructed any – let alone all – employees that they could engage in protected recording in spite of the rule, as would be required to effective clarify the rule’s scope.

Help to Employers Asserting Their Rights to Defend Their Workplace Rules

The General Counsel often leverages the threat of a summary judgment motion to pressure employers into stipulating to the facts of a case challenging its workplace rules. Employers should avoid submitting to this pressure and voluntarily relinquishing their right to present an evidence-based, full defense. This decision gives employers a useful tool when asserting its right to present a full and comprehensive defense in the face of such pressure from the General Counsel.

Philip Miscimarra. Credit: NLRB.gov.

On April 24, 2017 President Trump designated Philip Miscimarra as Chairman of the National Labor Relations Board (NLRB or Board). The move follows the President’s late January designation of Board Member Miscimarra as Acting Chairman.

A Republican Chair

Miscimarra, a management-side labor lawyer and a Republican, was nominated to serve on the Board by then President Obama in 2013 and was confirmed by the Senate for a four year term that continues through December 16, 2017.  President Trump can nominate Chairman Miscimarra for another term if he should wish to do so. While Board Members are subject to Senate confirmation, the President may, in his discretion, designate a Member of the NLRB to serve as Chair at his pleasure.

Two Vacancies Remain On the NLRB

The Board is composed of five Members and at this time two of the seats on the Board are vacant. The vacant seats are reserved for Republicans.  The Board is generally composed of three Members of the President’s party and two from the other party.  Board Members Mark Pearce and Lauren McFerran are both Democrats.

What Is Likely To Change With a New Majority

Notably, Chairman Miscimarra, through a series of dissenting opinions taking issue with decisions of the Obama Board’s Democratic majority has offered a significant overview of issues as to which, once there is a new Republican majority on the NLRB, employers, unions and other advocates can expect the Board to likely move, as cases presenting the issues come before it for decision. These include such issues as the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (NLRA), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

Election Rules and Procedures

Also notable is the fact that Chairman Miscimarra was a dissenter when the Board adopted its Amended Representation Election Rules that took effect in May 2015. Those rules, often referred to as the “ambush” or ”quickie” election rules that have not only cut the time between the filing of a representation petition and a vote from an average of 40-45 days to approximately 25 days. Since the Amended Rules took effect, Mr. Miscimarra has pointed out that they have placed an undue priority on speed, compromising the rights of employees to make informed decisions when they vote and the right of employers to meaningfully communicate with employees before an election.

Because the Amended Rules were adopted under the Board’s rulemaking authority, any further revisions in the election rules must also be made either through the same lengthy process or by Congress through legislation. For the Board to do so will require a new majority that agrees that change is needed. While various sources have suggested that the new administration is considering who it will nominate for the vacant seats on the Board, only time will tell when the President will submit his nominations and the Senate will consider them.