With the dust still settling from our national election this week, I’ve been digesting what it means for the NLRB. So, here are some initial thoughts.
Two of the five NLRB positions are vacant now. But, the details on the appointment process are messy. The NLRB members President Obama selected have staggered terms that will carry over into President-elect Trump’s administration. Moreover, the General Counsel (the “prosecutor” of unfair labor practice complaints) is also appointed with a different term.
The two vacancies should go to Republicans because the NLRB is always controlled by the political party that holds the White House. But, that could take some time. Here is a good explanation of the details, including discussion of one scenario in which Trump doesn’t appoint anyone to take the place of Member Miscimarra.
Perhaps the more interesting question for labor professionals is what will happen when the Trump NLRB is up and running? Well, Republican members typically are more sympathetic to employer concerns. And, there is no shortage of issues that employers would have liked to see come out differently.
One development from Obama’s NLRB is a good example. Substantial amounts of ink have been spilled (including on this blog) on the NLRB’s election rule, sometimes called the “quickie” or “ambush” election rule. The Trump NLRB could undertake an effort to repeal that rule, but that would consume a lot of the NLRB’s resources. When we look at the data on elections, the rule has not resulted in a substantial increase in election petitions at the NLRB. Indeed, the biggest problem with the election rule is really when it is paired with the NLRB’s Specialty Healthcare decision on bargaining units. That decision permitted “micro-units” of employees. When the ability to organize a small unit is paired with the “quickie” election rule, it can put employers in a very difficult position.
One way a Trump NLRB could address this issue would be to simply overrule Specialty Healthcare. In doing so, not only could the NLRB return to the rule that prevailed for two decades prior to that decision, but could also limit the practical impact of the NLRB’s election rule.
Ultimately, given how the terms of NLRB members work and the politics of the Senate, it may be a while (my guess? end of 2017 or later) before any difference is seen in the decisions coming from the NLRB. Labor professionals should plan accordingly as they address issues in which the NLRB will have an interest.