A transition period follows every change of administration, when the incoming president appoints new leadership to federal agencies. As the federal agency tasked with interpreting and enforcing federal labor law, the National Labor Relations Board (NLRB) is no exception. The Board is governed by a five-member panel appointed by the president to five-year terms. The Board’s position on the rights of workers can change substantially depending on whether a Republican or Democratic president has appointed the majority of members.
Currently, there are three sitting Board members and two vacant seats, due to Republican obstruction of Obama’s appointments. The Democratic appointees currently hold a majority, with the sole Republican appointee serving as the Acting Chairman. Over the last eight years, the Obamaappointed Board has issued numerous decisions to advance the rights of American workers.
Examples of the Obama Board’s great decisions include United Site Services, an important ruling on the power of workers to strike in a recent case brought by Teamsters Local 315. In that case, the Board found that the employer had an “independent unlawful purpose” in hiring replacement workers during an economic strike and refusing to reinstate strikers. Previously, companies could claim “economic necessity” as a basis for hiring workers to permanently replace employees out on strike over the terms and conditions of employment; this incentivized employers to hire replacement workers to break a strike. In United Site Services, the Board found that the employer unlawfully replaced and refused to reinstate the striking workers because of evidence that it had done so with intent to discriminate and/or discourage union membership. The striking workers were all reinstated with back pay—a huge victory.
In another recent example of the Board reaching a common sense and correct result, Total Security Management Illinois 1, LLC, the Board held that an employer must, in the period prior to the ratification of a first contract, provide the newly-elected union with notice and an opportunity to bargain over the discretionary aspects of the decision to impose serious discipline. Serious discipline includes suspension, demotion and termination. If exigent circumstances warrant immediate serious discipline, the employer must still notify and bargain the effects of such decision with the union. As employers sometimes use the period during which a first contract is negotiated to continue its anti-union campaign, such protection of newly- organized unit members is critically important to the success of bargaining a first contract.
As of this writing, the Trump Administration has not announced nominees for the two vacant positions on the Board, and the question of how Trump will alter what has been a pro-worker NLRB remains unanswered.
During the next four years, the Board will rule on important legal questions impacting thousands of workers. The Board will likely hear cases involving the parameters of joint employer liability for purposes of bargaining and liability for unfair practices. Additionally, the new Board could reverse course on the recently-expanded protection of employees in non-union workplaces and invalidate mandatory class action waivers as an infringement on the right to engage in concerted protected activity. The Trump Board may also tackle further defining who has the right to organize as an “employee,” an issue moved to the forefront by the proliferation of “gig” employment over the past few years. Notably, the Board will likely also hear cases involving Trump’s own businesses, as dozens of unfair labor practice charges against Trump hotels are currently pending at various stages before the Board.
With the many critical issues facing the labor movement, Board rulings can have a significant and lasting impact on organizing and collective bargaining. We can expect Board policy to shift with Trump’s appointees. What is more uncertain is how much of the gains of the Obama Board will be reversed.
Beeson, Tayer & Bodine — Oakland: 510-625- 9700. Sacramento: 916-325-2100.