NLRB Nominees Expected to Undo Obama-Era Rulings

Joint employer, micro-union decisions at top of hit list

Allen Smith, J.D. By Allen Smith, J.D. July 12, 2017
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​National Labor Relations Board (NLRB) decisions on joint employers, micro-unions and employee handbooks might be reversed if the Senate confirms two newly nominated candidates.

William Emanuel, nominated by President Donald Trump on June 27, and Marvin Kaplan, nominated June 20, represent solid Republican votes and, together with NLRB Chairman Philip Miscimarra, will give Republicans a 3-2 edge on the board, according to Michael Chamberlin, an attorney with Winston & Strawn in Los Angeles. There will be enough votes to overturn Obama-era opinions once cases addressing joint employers, micro-unions and handbooks reach the board. But that will take a while, so "don't expect a giant change quickly," Chamberlin added.

Nominees' Qualifications

Emanuel, a Littler attorney in Los Angeles, is "one of the deans of the management side of the labor law bar in Los Angeles. You will not find anyone more experienced or qualified for the board," said Scott Witlin, an attorney with Barnes & Thornburg in Los Angeles.

Kaplan currently is with the Occupational Safety and Health Review Commission, which resolves appeals of Occupational Safety and Health Administration penalties, and before that was workforce policy counsel with the U.S. House of Representatives Education and the Workforce Committee. He has a "different area of expertise" but will be able to provide insights into administrative law and Congress' workings, Witlin said.

Joint Employers

The NLRB's Browning-Ferris decision on joint employers moved from a bright-line test of direct control of one employer over another to constitute joint employment, as with franchisors and franchisees, to one of indirect control, upending decades of case law and injecting uncertainty in labor relations, said Lizzy Simmons, senior director for government relations with the National Retail Federation in Washington, D.C. Indirect control might exist if an employer reserves the right to control another entity but doesn't exercise this right, such as an employer that includes such language in an agreement with an independent contractor.

Browning-Ferris appealed the NLRB's decision, and the U.S. Circuit Court of Appeals for the D.C. Circuit will rule on the NLRB's decision, which the appeals court may or may not uphold, noted Don Schroeder, an attorney with Foley & Lardner in Boston.

In any event, the board might revisit its decision—a common occurrence when the White House changes parties, Witlin said.

Under the NLRB's ruling, franchisors and franchisees could be found to be joint employers, so both entities would have the responsibility to bargain with unions representing workers, Chamberlin said. The ruling also could apply to employers and independent contractors, so both entities would be held joint employers with duties to bargain, he added.

Micro-Unions

A newly Republican-led board also might overturn the NLRB's approval of micro-unions in its 2011 Specialty Healthcare decision. Congressional Republicans are seeking to reverse the ruling, which allowed unions to target subsets of employees most likely to support organized labor.

Simmons described the decision as "very disruptive," saying it prevents cross-training and disallows employees from picking up shifts in other departments. Employees outside the micro-unions wouldn't be allowed to work within the micro-unions because the unions wouldn't want nonunionized workers to earn the higher wages paid in the micro-unions. And micro-union employees wouldn't be interested in working in the nonunionized positions, which presumably would pay less than their own.

Schroeder said the decision creates an "HR nightmare" because micro-unions necessitate separate sets of policies, wages and benefits for those in the micro-unions and those outside them. Restrictions on working conditions, hours and overtime for employees in micro-unions may differ from those in the nonunionized workforce, he added.

Less Enforcement

Schroeder said the NLRB under Republican leadership would not "continue to dip their toes into the area of employee handbooks and confidentiality provisions."

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

During the Obama administration, the NLRB struck down employers' confidentiality agreements that asked employees to keep silent after being interviewed in connection with workplace investigations. It has held that these agreements violate workers' right to protected, concerted activity.

Schroeder said he didn't see the board "taking as expansive a scope in terms of adjudicating those types of disputes."

He also said he expects the board to stop restricting employers from disciplining or firing employees over social media postings that violate employers' social media policies set forth in their employee handbooks. The 2nd Circuit recently affirmed an NLRB ruling protecting vulgar speech as concerted activity, but Schroeder predicted that "we'll see less enforcement" in this area from a Republican-led NLRB.

 

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