The NLRB's (Slow) Right Turn
Employers now have an expectation that corrections will be made to bring sanity and predictability back to the National Labor Relations Board after eight years under the Obama administration. But change will take time.
By James R. Redeker
The last eight years under the Obama administration's National Labor Relations Board have been confusing, perplexing and pocked with pitfalls for union-free employers. The NLRB's brazen pro-union activists drove relentlessly to achieve their stated goals of forcefully applying the National Labor Relations Act to unrepresented employees, expanding the number of employees who would be protected by the act and promoting collective bargaining through increasing union membership.
A review of only some of the Obama board's most troubling actions and decisions demonstrates the extent to which the NLRB has made it tougher for employers to avoid costly unfair labor practice charges by non-union employees or to remain union-free:
Complainers Are A Protected Class: Employees who complain about terms and conditions of employment are now a protected class, opening the board processes to countless predatory plaintiffs' lawyers in connection with virtually every employee discharge by alleging that the discharge was in retaliation for complaining.
On-line Organizing: The board now accepts the validity of union authorization cards that have been "signed" virtually on private web sites. As a result, a union can campaign entirely on-line and get a sufficient number of union authorization cards completely undetected by an employer.
New Election Rules: The new election rules are weighted heavily against employers, particularly the unwary and surprised, making resisting union organizing more difficult.
Micro-Units: Unions may now organize employees in units as small as a single classification, vastly improving a union's ability to gain a foothold in any workforce. It is far easier to organize 10 fork-lift truck drivers than an entire warehouse or to organize payroll clerks than all clerical employees.
Supervisors: The definition of supervisor has been narrowed to provide more employees with the protections of the NLRA and to increase the numbers who can be unionized, reducing by a like number those employees whom the employer can count on to deliver its message to the employees in the event of a union campaign.
No Solicitation/No Distribution Rules: The definition of "soliciting" has been narrowed to exclude pro-union talk by employees during working time. As a result, active campaigning can take place during working time in working areas in spite of a legal no solicitation rule, provided actual card signing is not involved.
Employer Communications Systems (e.g., email system): Prohibiting employees from using the employer's email and other communications systems for union solicitations during non-work time and during work time is now unlawful if employees are permitted to use the systems for other non-business reasons, such as arranging a baby shower.
Social and Public Media: Using social and public media to criticize an employer must be permitted, even if the criticism damages the employer's business reputation.
Use of Cameras/Recorders in the Workplace: Employees cannot be prohibited from using cameras or recording devices in the workplace. As a result, an employee who insists on recording an interaction with a supervisor cannot be stopped.
Rules Governing Employee Conduct: Rules requiring respectful conduct toward co-employees and supervisors and prohibiting lying and bullying in the workplace are now unlawful.
Sexual and Other Harassment May Be Protected Activities: Disciplining or discharging employees who use sexually offensive language or gestures while engaged in other activity protected by the National Labor Relations Act is unlawful.
Off-Duty Employees: Prohibiting off-duty employees from being in the employer's buildings to solicit for a union is unlawful if off-duty employees are permitted in the buildings for any other reason, including to resolve a personnel issue or to attend a retirement party. Also, rules that prohibit off-duty employees from being on their employer's external property at any time are unlawful.
Joint Employers: The definition of joint employer is broadened to make it more difficult for employers who use staffing companies to avoid dealing with a union representing the employees supplied by the staffing company.
Mixed Units: Bargaining units consisting of regular employees of the employer and employees supplied by staffing companies are now appropriate, increasing the ease by which unions can organize an employer's regular workforce.
Franchisors: Franchisors are joint employers of the employees of franchisees (position taken by the General Counsel; in active litigation and pending decision)
This list demonstrates how far the Obama board has swung the pendulum of its interpretation and application of the NLRA to the farthest extent possible in favor of organized labor. As a result, many employers are confused by the complexities and uncertainties of the shifting sands, caught up in unnecessary and expensive litigation and catatonic with disbelief. It is no surprise, therefore, that on numerous occasions after the change in the administration, employers have an expectation that corrections will be made to bring sanity and predictability back to their businesses.
Unfortunately, not all of these decisions and actions will be reversed, and none of the corrections will come soon. In the meantime, employers will continue to be subject to the enforcement of the Obama board's rules and must act accordingly.
The various majorities of the Obama board may have been pro-union activists who were intent on swelling the ranks of organized labor, but they were not stupid. On the contrary, they were very smart and well-schooled in board precedent. As a result, each of the board's decisions that appear to many employers to be beyond the pale is filled with citations to board and court decisions that provide legal support for the conclusions. Reversing these cases will require similar scholarly analysis. Further, several of the most troubling cases, such as the one involving Specialty Healthcare, have already been approved by the courts and other cases are pending on appeal and may be similarly approved. Although the approvals have been largely on the basis of deference to an administrative agency, reversals of these cases will be more difficult.
Moreover, President Trump is actively courting the support of organized labor and may not choose new Board members who are activists in favor of employers. What is most likely is that the Trump Board, when fully constituted, will seek to modify and not reverse many of the objectionable Obama Board decisions. The result will be somewhere between where the law was before Obama and where it is now. Some of these modifications will not be universally applauded and, in all probability, employers will still have to contend with many rules and principles that they now find to be repugnant.
Also, corrections will not come fast and employers should not expect significant change for at least a year. Except for the election rules, which may be amended by rule, Board law develops as cases are presented to the Board for decision. The right cases need to come along to permit corrections even to be considered. This may take time.
Further, and perhaps even more significant, is the reality of how things work. Consider the following:
The Obama board was not finished issuing decisions on Jan. 20 when Trump was inaugurated. Cases that have been decided and are in the stage of circulating draft opinions will still be published.
Only the position of board chairman serves at the pleasure of the president. Consequently, the only change on the board that could and has come swiftly is that Phillip Miscimarra, the only Republican currently on the board, was appointed by President Trump as acting chairman. This, however, will have little effect, since the power of the chairman is largely limited to administrative matters and use of his bully pulpit. Other actions of the board will still require a majority of the Members. Currently, there are only three members on the board and two are Obama appointees, guaranteeing that Miscimarra will continue to be writing minority opinions for a while.
Two positions are currently open on the board. Both will be filled by Trump appointees. When that is accomplished, the board will have a majority of people expected to be favorable to employers. However, Trump's appointees must be confirmed by the Senate and the Senate minority will likely assume that the appointees will not be favorable to their constituents. Consequently, there may be significant efforts to block the confirmations, forcing Trump to function with temporary recess appointments, if he chooses to make them, and the first realistic time for this will not come until much later in the year. Further, it is possible that full-term appointments will not be made until spring, after the president has focused on getting his major appointments confirmed.
The chief enforcement officer of the board is the general counsel, Richard F. Griffin. His term is not over until Nov. 4, 2017. Mr. Griffin is a former member of a pro-union majority and is expected to make decisions about which cases are to be prosecuted and issue guidance memoranda based on current Board law until the end of his term or until a new Board majority changes the law.
When all of the above factors are considered, employers should plan on continuing their compliance with current Board law and make no changes in their conduct in anticipation of assumed corrections to the decisions and actions of the Obama board. Unprepared and unwary employers will continue to be caught in the tangle created by the Obama board and, if they are not vigilant and proactive, become the target of predatory plaintiffs' lawyers filing unfair labor practice charges or unionized by accident.
Needless to say, unions are expecting modifications or reversals to the cases and rules that have been making the organization of employees easier. As a result, employers should expect and plan for increased union organizing activity while the landscape created by the Obama board remains unchanged.
James R. Redeker is a partner at Duane Morris in Philadelphia. Send questions or comments about this story to firstname.lastname@example.org.