NLRB Watch

NLRB's Acting GC was unlawfully appointed: NLRB v. SW General Inc. (03/21/2017) - The President's appointment of Lafe Solomon as Acting General Counsel of the NLRB violated the Federal Vacancies Reform Act. He was Acting General Counsel when the President nominated him to serve on a permanent basis but the Senate did not act on the nomination. Once he was nominated, the Federal Vacancies Reform Act prevented him from performing the duties of that office on an acting basis. [Details: NLRB's Acting GC was unlawfully appointed]

Elections matter. When I was teaching labor law classes, it was often difficult to persuade some students that the outcome of a national election can determine the outcome of a case litigated at the NLRB. The pendulum of NLRB decisions swings left and right depending on the makeup of the Board, and that makeup depends on who occupies the White House and the Senate.

We now have a Republican President and Senate, so let's talk about changes in the NLRB's interpretations of the law that will occur once the President has made some appointments.

NLRB membership. Normally five Members, the Board now has only three - two Democrats and one Republican. In his first week in office the President appointed Republican Member Philip A. Miscimarra to be Acting Chairman. William J. Emanuel and Marvin E. Kaplan are the President's picks to fill two vacant seats at the NLRB. See my comments at Emanuel and Kaplan tipped for NLRB

After the President appoints two more Members (and the Senate confirms them) we will begin to see changes. Also, the current General Counsel (sort of a prosecutor), is a Democrat whose term expires in November, and a change there also will make a difference. We may have to wait until 2018 to see the impact, but we will certainly see it.

Issues where change is in the wind

Video: 3:56 minutes. Ross discusses 10 policies he expects the NLRB to change once the President appoints two new Board members.

Video: 3:56 minutes. Ross discusses 10 policies he expects the NLRB to change once the President appoints two new Board members.


Election Rule. In 2015 the Board adopted a new election rule [NLRB fact sheet] intended to decrease the time preceding union elections, thus sometimes called the "quickie election rule." The rule allows for an election as early as eleven days after a petition for representation is filed. Among other changes, the rule defers employer challenges to voter eligibility issues until after an election is held; removes the standard 25 day delay that normally occurs between the time a regional director directs an election and the actual election; and requires expanded disclosure of employee contact information. The 5th Circuit upheld the rule in 2016. [5th Circuit decision] Because this is a "rule" adopted after notice-and-hearing, changing or repealing it will require a similar notice-and-hearing procedure, which can be quite lengthy. 

Class-action waivers. In D.R. Horton (2012) [Board decision] [not enforced by 5th Cir], the NLRB said that it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case, either in litigation or in arbitration. Federal circuit courts are split on this, and the issue is now before the US Supreme Court (Epic Systems v. Lewis, consolidated with two other cases). A decision is expected in early 2018. See NLRA v. FAA – US Supreme Court will decide class-action waiver cases. Also see Delayed arguments in class-action waiver case

Video: 4:23 minutes. It looks likely that the government will do an about-face and disown the basic D.R. Horton rule.

Video: 4:23 minutes. It looks likely that the government will do an about-face and disown the basic D.R. Horton rule.

Micro units. In Specialty Healthcare (2011) [Board decision] [enforced by 6th Cir], the Board made it easier to find that a smaller unit of employees is an appropriate unit for holding an election. The Board's current approach: If a small unit has a community of interest, the burden shifts to employer to show that a larger unit has an "overwhelming" community of interest. For example, the Macy's case (2014) [Board decision] [enforced by 5th Cir] found that cosmetics and fragrance employees in a retail store made up an appropriate unit, thus ending a longstanding preference for wall-to-wall units in retail stores. 

Deferral to arbitration. Babcock & Wilcox (2014) [Board decision] modified Olin Corp (1984) to make it more difficult to obtain deferral to arbitration awards, grievance/arbitration proceedings, and pre-arbitration grievance settlements.

Joint employers. Browning-Ferris (2015) [Board decision] made it easier to find that two entities are joint employers. A company can be the joint employer of workers provided by a staffing company if there is sufficient right to control the workers' working conditions. A franchisor can be a joint employer if it has the right to control working conditions of a franchisee's employees, even if such control is never exercised. 

Joint representation. Miller & Anderson (2016) [Board decision] overruled Oakwood Care Center (2004) and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain employer consent.

College students. Columbia University (2016) [Board decision] overruled Brown University  (2004) and held that college student assistants are statutory employees, and the fact they are also students does not change their status as employees. 

Confidentiality rules. The Board has issued several decisions holding that certain confidentiality policies were unlawful because employees could construe them to forbid discussion of wages and working conditions. 

Employer's email system. Purple Communications (2014) [Board decision] (reaffirmed in 2017) overruled Register Guard (2007) and held that employees may use their employer's email system for protected communications on nonworking time.

Union dues check-off. WKYC-TV (2012) [Board decision] overruled Bethlehem Steel (1962) and held that a dues check-off provision in a collective bargaining agreement remains in force after the collective agreement has expired.

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NLRB Members
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Chairman Philip A. Miscimarra (R)

Philip A. Miscimarra (R)

Mark Gaston Pearce (D)

Mark Gaston Pearce (D)

Lauren McFerran (D)

Lauren McFerran (D)