As we’ve previously discussed, the National Labor Relations Board (the “Board”) is moving at breakneck speed on a number of issues. Here is an update on six employer-friendly headlines from December and January (outside of the four major decisions we’ve already seen and written about here and here):
- On December 11, the Board overruled a 2016 ruling and restored its previous standard for accepting proposed settlement terms, allowing its judges to approve deals that resolve only a portion of the Board’s claims in a given case as long as the settlement is deemed reasonable based on factors set forth in Independent Stave, 287 NLRB 740 (1987).
- On December 14, the Board published a notice in the Federal Register requesting public comment on its current representation and election procedures (i.e., its “quickie” or “ambush” election rules), indicating a possible return to longer NLRB election campaigns. Responses to this request are due by February 12. Employers interested in submitting a response should soon reach out to a member of the V&E team.
- On December 22, in the wake of the Board’s order in PCC Structurals (which reinstated the Board’s traditional “community of interest” standard when determining the scope of a union’s petitioned-for unit), the NLRB General Counsel issued a memo that directs NLRB Regional Directors to immediately begin applying the PCC Stucturals standard, even in active cases where the scope of the unit has been decided.
- On December 27, the Board issued an order in which President Trump’s two appointed Board members — William Emanuel and Marvin Kaplan — stated that to the extent that confidential severance agreements are not already permitted under Board precedent, they wanted to reconsider the Board’s position.
- On January 4, the Board dismissed a complaint it had filed against Honeywell International Inc. in July 2017. Honeywell had been set to face trial in May 2018 on unfair labor practice charges related to its ten-month lockout of 350 union workers at aircraft brake factories in Indiana and New York.
- On January 12, the White House announced its plans to nominate a Republican, John Ring, to fill the Board vacancy left by Philip Miscimarra. If confirmed, Ring would break the 2-2 Republican-–Democrat tie on the Board. The Board would then be free to reconsider Obama-era precedents regarding protected activities, successorship, and campaigns, among others.
It hasn’t been all good news for employers: In mid-December, the NLRB gave a small boost to graduate student unionization by certifying the Graduate Workers of Columbia-UAW to represent about 3,000 graduate research and teaching assistants at Columbia University and by allowing a revote in a similar union campaign at Harvard University. This development, however, may be temporary. Board Member Emanuel indicated in a footnote to the Board’s unpublished Harvard order that the graduate student employee status may still be up for “reconsideration.”
Considering Ring’s pending confirmation, the Board is set to revise and replace its recent precedent. It’s safe to say we’re in for a ride.