Policy

Trump Nominees for Labor Board Could Nix Obama-Era Rules

‘This represents a huge opportunity for reform’

President Donald Trump leaves the East Room after signing the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 at the White House June 23, 2017 in Washington, DC. (Chip Somodevilla/Getty Images)

President Donald Trump’s nomination of two attorneys to serve on the National Labor Relations Board would give the panel a Republican majority that could roll back a slew of labor regulations.

William Emanuel of Littler Mendelson, a law firm that represents employers, and Marvin Kaplan, counsel at the independent federal Occupational Safety and Health Review Commission, have been officially nominated to fill two openings on the five-seat board.

“This represents a huge opportunity for reform,” said Trey Kovacs, a labor policy expert at the conservative-leaning Competitive Enterprise Institute, a public policy group. “In recent years, the NLRB has pushed out job-killing decisions and regulations favoring the interests of organized labor over individual workers.”

Both candidates will need to be confirmed by the Senate and vetted by senators of the Health, Education, Labor and Pensions Committee. The NLRB is designed as a five-member board, with three members belonging to the party that controls the White House, and two from the opposite party. Of the three current members, labor and employment lawyer Philip A. Miscimarra, is the only Republican and was named chairman of the board by Trump in April. His term will end December 16.

The two nominations drew immediate support from Rep. Virginia Foxx, R-N.C., chairwoman of the House Committee on Education and the Workforce, and Rep. Tim Walberg, R-Mich., chairman of the Subcommittee on Health, Employment, Labor, and Pensions. 

“These are well-qualified nominees with deep understanding of the policies impacting America’s workers,″ they said in a joint statement. “We are confident they have what it takes to return the board to its role as the neutral arbiter Congress intended.”

If Kaplan and Emanuel, who was officially nominated Tuesday night, are confirmed and a Republican majority is established, the NLRB is expected to undo a number of its rulings made during the Obama administration.

The major ones include the following:

Joint employer standard

The August 2015 decision expanded the types of business arrangements in which companies and their contractors would be considered joint employers of workers, and liable for safety violations as well as union negotiations. The board’s ruling stemmed from its determination that a waste management company and a contractor the company hired were both joint employers of the contractor’s workers and liable for labor violations. The ruling has raised questions about whether fast food franchisers, such as McDonalds, are liable for employees in individual stores.

“Restaurants are facing more operational and legal costs and less compliance assistance as a consequence of the new joint employer standard,” said Shannon Meade, Director of Labor and Workforce with the National Restaurant Association. “But it’s not just restaurants operating under the franchise business model. Non-franchise businesses of all sizes are now exposed to joint employment liability. In fact, for large businesses, the frequency of joint employer litigation has swelled.”

Unions, however, said the ruling reflects modern workplaces where staffers might be hired by one company, but then have another company dictate things such as what hours they will work and their behavior on the job.

Micro-unions

This ruling allows smaller groups of workers to unionize. In one case, after sales associates decided to not unionize at a Macy’s department store, cosmetic and fragrance sales associates decided they did and were able to form their own union. Business advocates argue that this can make it difficult for employers to find employees to fill in for an absent co-worker and can make it hard for employees to move from one part of the organization to another.

Unions election rules

These regulations allow union elections to occur in a shorter period of time. Republicans argue that leaves employers less time to prepare for the election, and can prevent workers from receiving information from both sides. Since the rule went into effect in April 2015, workers were able to file a petition to form a union and hold an election within 23 days, down from an average of 33 days, according to the National Labor Relations Board.

The board would have to go through a rulemaking process to end the election regulations, which includes putting out a draft proposal of the rules and collecting public comment. The rule has also undergone scrutiny by the courts and was upheld, said Celine McNicholas, a labor counsel with the liberal think tank Economic Policy Institute.

“Given that it has been upheld by the 5th Circuit Court of Appeals and the D.C. District Court, I would see that as colossal waste of resources,” she said.

Another big change expected under a Republican-led board is how it deals with cases involving employee handbook instructions. In several cases, the board found instructions such as “Be respectful of others and the Company” could be misconstrued as prohibiting employees from protesting working conditions or their employer’s treatment of them. That has created confusion among employers about what they can and can’t ask of employees as far as their behavior, said James Plunkett, senior government relations counsel with Ogletree Deakins.

“There is a general distaste in the employer community for the way the board, over the last several years, went after employee handbooks and workplace policies,” he said. “It created a lot of frustration for employers who thought these were common sense policies that they were enacting.”

The rulings and regulations won’t change right away. Relevant cases will need to come before the board before any previous decisions can be undone. But it’s possible that the board could weigh in on an employee conduct case and even a micro-union case before the end of the year, said Roger King, a senior labor and employment counsel with HR Policy Association.

“Based on most recent history, these types of cases are frequently in the pipeline and could be expected to be in the current inventory,” he said.

In addition to the two Democratic board members, General Counsel Richard Griffin, who was appointed by President Barack Obama, still has a say in investigating and prosecuting labor cases. His four-year term is slated to end Nov. 4, when Trump can nominate another general counsel.

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