Employment Law Alerts

The NLRB Pendulum Is About to Swing

Posted on October 11, 2017 at 9:50 AM

With recent Senate confirmations of the Trump Administration’s nominees to the National Labor Relations Board, the Board will have a Republican majority for the first time in over a decade. And when the nominee for General Counsel is confirmed, the table will be set for the Board to overturn a number of cases and rules that were decided and implemented during the Obama Administration, when the Board issued a string of union- and employee-friendly rules and decisions.

The Board has five members who are appointed by the President to five-year terms with one member’s term expiring each year. The current members are: Philip A. Miscimarra (Republican appointee, term expires 12/16/17); Mark Gaston Pearce (Democrat, 8/27/18); Lauren McFerran (Democrat, 12/16/19); Marvin E. Kaplan (Republican, 8/27/20); and William J. Emanuel (Republican, 8/27/21).

The General Counsel is appointed by the President to a four-year term. The current General Counsel Richard F. Griffin, Jr., whose term expires next month, previously served as general counsel for the International Union of Operating Engineers. President Trump’s nominee to succeed Mr. Griffin is Peter B. Robb, a longtime management-side labor attorney.

With the conservative shift on the Board, it’s expected that the NLRB will weaken or reverse a number of key Obama-era rulings and guidance that increased labor protections under the National Labor Relations Act (NLRA) for employees who criticize employers on social media, scrutinized employer social media and “no gossip” policies, and set out an expanded test for determining whether a union can obtain witness statements from internal employer investigations, among other things.

Other cases and rules that will likely be revisited under the new NLRB include:

  • Joint employment: The Board’s 2015 decision in Browning-Ferris expanded the scope of who is a joint employer, such that a franchisor may have an obligation to bargain with a union that represents a franchisee’s employees and a company may have the same obligation involving its contractor’s employees. The case is currently before the D.C. Circuit Court of Appeal and if it is remanded to the Board, the Republican majority will likely take the opportunity to return to its traditional, narrower, standard for determining joint employer status.
  • Union elections: In April 2015, the Board implemented the so-called “ambush election rule,” which made a number of changes to the NLRB’s procedures in processing cases involving union representation campaigns. One of those changes shortened the time between the filing of a union representation petition with the NLRB and the date of the election. The Republican majority may revert back to the previous practice that gave employers more time to make their case to employees about union representation.
  • Narrow Bargaining Units: In a controversial 2011 decision in Specialty Healthcare and Rehabilitation Center of Mobile, the Board made it very difficult for an employer to challenge a narrow bargaining unit. That case was affirmed on appeal by the Sixth Circuit in 2013. However, if a case presenting that issue comes before the new Board, the Board is free to revise that precedent. 

While the pendulum swing is good news for employers, it could still take some time until we begin to see more employer-friendly rules and decisions coming out of the NLRB. Employers should keep their eye on developments and in the meantime should continue following current Board rules and cases.


Miller Law Group exclusively represents business in all aspects of California employment law, specializing in litigation, wage and hour class actions, trials, appeals, traditional labor, compliance advice, and counseling. If you have questions about these developments or other workplace obligations, please contact us at (415) 464-4300.

This Alert is published by Miller Law Group to review recent developments in employment law. This material is designed to provide informative and current information as of the date of the Alert, and should not be considered legal advice.


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