FOR IMMEDIATE RELEASE
June 30, 2017
Ryan Williams 202-677-7060
IN CASE YOU MISSED IT
The Trump Labor Board’s List
June 28, 2017
The Wall Street Journal
President Trump is finally filling out the National Labor Relations Board, and not a moment too soon. Repudiating the Obama NLRB’s radical rulings will take time, but Congress could lend a hand.
Last week Mr. Trump nominated Marvin Kaplan, counsel at the Occupational Safe and Health Review Commission, to one of two vacancies on the board. And this week the President rounded out the five-member board by naming William Emanuel, an employment lawyer at Littler Mendelson who helped challenge the Obama NLRB ruling that bars class-action waivers in arbitration agreements. The Fifth Circuit Court of Appeals rejected the board’s theory, and the Supreme Court has agreed to hear the case.
Both are well-qualified attorneys who will hew to statutory or case law. They are unlikely to get rolled by union-friendly staff who have sometimes been more knowledgable and influential than the board’s GOP members.
The nominations will give Republicans their first board majority in a decade, and there’s little time to waste. Some 360 cases are pending before the board, many of which present opportunities to correct recent board rulings that depart from longstanding precedent. The Coalition for a Democratic Workplace last year estimated that the Obama NLRB overturned 4,559 years of established law.
One example is the 2015 Browning-Ferris decision, which created a new “indirect influence” joint-employer standard that has upended contractual relationships as well as the franchise business model. The ruling, which nullified three decades of board and judicial precedent, allows unions to drag companies into labor disputes with subcontractors and franchisees.
Also pivotal is the 2011 Specialty Healthcare decision that let unions form micro-bargaining units within a “community of interest” that shares job classifications, functions and skills, among other commonalities. This lets unions use a divide-and-conquer strategy to organize workplaces.
Last year the board melded Browning-Ferris and Specialty Healthcare by ruling that employer consent isn’t needed for bargaining units that combine jointly employed and solely employed workers. Other Obama NLRB departures include letting university teaching assistants unionize and letting workers defame their company on social media and keep their jobs.
Don’t forget how the Obama NLRB rigged union election rules to deny employers due process. One change restricted employers’ ability to dispute the eligibility of workers in a bargaining unit before an election. And an expedited election schedule limits employers’ opportunity to present their case to employees. While employers can contest the board’s decisions in court, President Obama packed the D.C. Circuit Court of Appeals with liberal judges who are inclined to defer to the board’s judgment under the Chevron standard.
This is why it’s important for the GOP Congress to clarify ambiguities in the National Labor Relations Act that unions have exploited to give themselves organizing advantages that Congress never intended. For starters, Congress could codify the direct control joint-employer standard as well as union election procedures that protect employer and worker rights.
Legislation would protect the Trump NLRB’s decisions against legal challenges from the left while hemming in future Democratic majorities. Otherwise, employers will have to fight the same battles the next time a Democrat is elected to the White House.
To access the editorial, click here.
The Workforce Fairness Institute is an organization committed to educating voters, employers, employees and citizens about issues affecting the workplace. To learn more, please visit: https://www.workforcefairness.com.
To schedule an interview with a Workforce Fairness Institute representative, please contact Ryan Williams at (202) 677-7060.