It is no secret that the National Labor Relations Board (NLRB or Board) effected significant labor-friendly changes to long-standing rules and precedent during the Obama administration. Nor is there much doubt that the NLRB is likely to see equally significant changes under President-elect Trump and the Republican-controlled Congress. With the agency in such a state of flux, employers are experiencing legal whiplash as the calendar turns to 2017. In an effort to assist employers attempting to make sense of the transition, here are five things every employer should know about the NLRB moving forward:
- The Board Composition. The NLRB currently is composed of two Democratic appointees and one Republican appointee, with two vacancies that President-elect Trump will have the power to fill once in office. Assuming Trump makes business-friendly (and Republican) appointments to the open Board seats, the voting majority of the Board will shift from Democratic to Republican control. The appointment of Philip Miscimarra, the lone Republican appointee remaining on the Board, expires in December 2017. If President Trump has not filled any vacancies on the Board by the time Mr. Miscimarra steps down, the Board would lack a quorum to do business and be powerless to decide cases and approve regional directors. Based on Mr. Trump's well-documented battles with the NLRB, it is not beyond the realm of possibility that he might choose to ignore the NLRB vacancies and leave the agency to lie fallow for as long as is politically feasible.
- Other Key Positions at the Board. In addition to Board member vacancies, the second key appointment set to expire is General Counsel Richard Griffin Jr. in November 2017. The NLRB General Counsel sets the prosecutorial priorities for the Board, issues guidance memoranda to assist employers and employees in interpreting the National Labor Relations Act, and appoints and removes the Regional Directors who lead the field offices of the Board, subject to Board approval. Mr. Griffin has been instrumental in setting the Obama administration's agenda at the Board and is not likely to assist a Republican majority in reversing this course while he remains in his appointment. The existing Regional Directors presumably will continue to take their guidance from Mr. Griffin while he remains in office. After his appointment expires, President Trump will appoint his successor, who will set the Trump administration's agenda for the Board.
- No Immediate Relief for Employers Fighting Charges. While most experts agree that Trump appointments to the NLRB will benefit employers, the filling of vacancies at the NLRB does not appear to be a pressing priority for the Trump administration. The transition of the Presidency is no small undertaking, and the likelihood is that the Trump administration will spend much of 2017 focused elsewhere. Until Trump fills the vacancies at the NLRB, it will continue to work with the Democratic majority currently in place. It would not be surprising if the NLRB were to continue with its current agenda for the majority of 2017.
- Reversal of NLRB Precedent Takes Time. Even after the vacancies on the Board are filled, it will take time for a Republican-controlled Board to reverse some of the more employee-friendly precedent set by the NLRB during Obama's tenure. Precedent is made through the deciding of cases at the Board level, subject to appellate review by the Federal Courts, and it is not uncommon for a case to take years from inception to completion. It could be years before the Board decides a case that could change precedent, such as the joint employer standard set in the case of Browning-Ferris Industries of California (BFI), 362 NLRB No. 186. In the meantime, regional field offices and NLRB administrative law judges will conduct trials and issue decisions based on the current precedent.
- Who Will President Trump Appoint to the Board? The consensus is that President Trump will appoint business-friendly individuals to the vacancies on the Board committed to rolling back many of the gains made by organized labor during the Obama administration. One name that has been rumored is Peter Kirsanow, who served on the NLRB under President George W. Bush and was on the shortlist for the Secretary of Labor position before Trump appointed Andrew Puzder. What is less clear is how Trump would reconcile an agenda that rolls back union rights with his populist constituency, many of whom are union members. This apparent contradiction in priorities bears watching as events unfold at the NLRB in 2017.
The bottom line is that employers should not assume that the NLRB will immediately change course after Inauguration Day. Prudent employers will consult counsel as 2017 progresses to stay abreast of the changes in labor law as they unfold.