I hate to sound unduly pessimistic, but any hopes you had of relief from unduly labor-friendly National Labor Relations Board (“the Board”) precedent this year will likely not happen because President Trump will likely not have a business-friendly majority on the five member Board until sometime early next year and a General Counsel willing to bring appropriate cases to overrule more controversial Obama Board precedent.
After months of inaction, the President nominated Marvin Kaplan and William Emmanuel to fill the two existing vacancies on the Board. The United States Senate (“Senate”) has confirmed Mr. Kaplan and will likely confirm Mr. Emmanuel sometime after the Senate’s summer recess concludes. Mr. Kaplan, a former Republican workforce policy counsel for the House Education and Workforce Commission, and Mr. Emmanuel, a Littler Mendelson shareholder, will bring a more management-sympathetic worldview to the Board. Unfortunately, current Board Chairman Philip Miscimarra, and a voice of reason, will leave the agency when his current term at the Board expires on December 16, 2017. Thus, the President will need to fill a third vacancy on the Board to ensure the Board’s ability to overrule controversial Obama-era precedent.
Another obstacle to the Board overruling controversial Obama-era precedent is that it is the General Counsel and not the Board that decides which cases the Board hears. The current General Counsel is Richard Griffin, a labor-side attorney, who will be reluctant to bring cases raising controversial labor-friendly precedent he believes a Trump Board will overrule. Mr. Griffin’s term does not expire until November 2017, roughly one month before the Chairman’s term expires. Thus, the Board may not receive an appropriate case to overrule any Obama-era decisions until after the President replaces both Mr. Griffin and Mr. Miscimarra.
Meanwhile Republican Members of the U.S. House of Representatives (“the House”) have introduced three bills, House Resolutions (“HR”) 2723, 2775, and 2776, to amend the National Labor Relations Act (“the Act”) to address certain Obama Board decisions and its Quickie Election rule.
- HR 2723 would amend the Act to eliminate voluntary recognition of unions and require unions secure the votes of a majority of employees in the appropriate unit to win an election.
- HR 2775 would alter the Board’s Quickie Election rule with respect to the timing and information that must be provided in the employee voter list.
- HR 2776, would restore largely the election procedures that existed prior to the Board’s imposition of its Quickie Election rules, including the requirement that elections not be held less than 35 days after the filing of the election petition. The bill would also overrule the Board’s unit determination standard promulgated in its Specialty Healthcare decision.
Although these bills may get through the House, the bills stand virtually no chance of getting through the Senate. Should these bill fail to become law, the Board will have to propose and implement a new election rule to undo the Quickie Election rule, a time consuming process. The Board will also need to find a good case to develop and explain the Board’s rationale for overruling Specialty Healthcare, particularly now that most U.S. Circuit Court of Appeals have endorsed the Specialty Healthcare standard.
Charles “Chip” Zuver is an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.