NLRB Update: Labor Relations Are in Transition This Labor Day

New NLRB members poised to change decisions

Allen Smith, J.D. By Allen Smith, J.D. August 30, 2017
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The National Labor Relations Board (NLRB) is at a crossroads this Labor Day, as its five-seat membership changes and as reversals of labor decisions made under the Obama administration are expected. And with the board in transition, so too are labor relations.

Union density continues to decline despite the many advantages that the NLRB gave to unions under the Obama administration, according to Hal Coxson, an attorney with Ogletree Deakins in Washington, D.C. Private-sector unionization is at an all-time low of 6.4 percent.

The Supreme Court and Trump NLRB may undo some of those advantages, such as a prohibition on class-action waivers and finding fault with handbook rules on courtesy, respectively, Coxson said. Reversing numerous Obama administration rulings will be "a lot for the new board to undertake," he said.

Currently, the board has two Republican members—Chairman Philip Miscimarra and Marvin Kaplan—and two Democratic members—Mark Gaston Pearce and Lauren McFerran.

The board also has a Democratic general counsel, Richard Griffin Jr., whose term expires Oct. 31. Peter Robb, a Republican and a management attorney with Downs, Rachlin and Martin in Brattleboro, Vt., is the rumored nominee to serve as the next general counsel.

William Emanuel, a Republican and a management attorney with Littler in Los Angeles, has been nominated to fill the empty seat on the board and is expected to be confirmed when Congress returns in September. But Miscimarra has said he will step down in December for personal reasons, leaving the board tied at 2-2 until he is replaced.

Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and former member of the NLRB, called the current composition of the board "an anomalous situation." Hayes noted that eight months into the Trump administration, the chairman was filing many dissenting opinions to the rulings of his own board because the Democrats still held the majority of the NLRB's seats. Kaplan wasn't sworn in until Aug. 10.

Class-Action Waiver Case

Griffin remains committed to the agenda of the Obama NLRB, writing a recent brief opposing class-action waivers in a case before the Supreme Court. While a decision on class-action waivers is expected from the Supreme Court in its upcoming term, it is possible the court will send the issue back to the NLRB to decide, Coxson said.

Susan Fowler, the whistle-blower who made harassment allegations at Uber, also has filed a friend-of-the-court brief, unrelated to her harassment claims, opposing class-action waivers. In her brief, Fowler noted the high turnover in the gig economy. Uber adds about 50,000 drivers per month. When drivers quit, new drivers are willing to replace them. 

"In light of these changes in the modern workforce, the 'economic weapons' of concerted action so prevalent in the 20th century—strikes and picket lines—are ineffective. Workers, for example, cannot engage in a meaningful work stoppage when there is an endless supply of 'strike replacements' in the form of 50,000 new drivers per month, or when employees change jobs every 18 months," the brief said. By necessity then, the modern workforce must turn to collective litigation to improve working conditions, the brief stated.

Hayes co-wrote a brief on behalf of the Society for Human Resource Management (SHRM), arguing that the Supreme Court should uphold class-action waivers because the National Labor Relations Act (NLRA) does not provide a substantive right to invoke collective procedures. "Invoking collective procedures is not the equivalent of engaging in 'concerted legal activity,' " the SHRM brief stated.

The enforcement of class-action waivers is "merely a procedural limitation on a procedural litigation device," Hayes said.

Courtesy Rules

Once Republicans have a 3-2 majority on the board, Coxson expects that the NLRB will re-examine a wide range of other cases, including those striking down handbook rules requiring workers to treat one another courteously.

He pointed to a 2012 case in which the NLRB struck down an employer's "courtesy rule" prohibiting "disrespectful conduct" and language that injures the employer's image or reputation.

[SHRM members-only toolkit: Complying with U.S. Labor Relations Laws in Nonunion Settings]

As Coxson noted in The Record of the NLRB in the Obama Administration: Reversals Ahead? (U.S. Chamber of Commerce, 2017), which he co-wrote, Robert Becker, a sales representative at a BMW dealership, made fun of a neighboring Land Rover dealership owned by his boss after one of its cars accidentally rolled into a pond during a sales event, throwing a salesperson into the water. Becker posted a photograph of the Land Rover car on social media and wrote sarcastic comments about it. He also made snarky comments on his Facebook account about the event's food.

Becker was fired for violating the company's courtesy rule, and he sued, alleging that the courtesy rule violated the NLRA. An administrative law judge agreed that the rule chilled employees' exercise of the right to protected concerted activity, and the NLRB affirmed.

Hayes dissented that "the rule is nothing more than a common-sense behavioral guideline for employees."

Decisions striking down courtesy rules have led to employers more closely reviewing courtesy policies to determine whether they might unduly restrict employees' speech. Coxson said that one of the first things the Trump board should review such decisions, which he said are "really giving employers nightmares."

 

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