Labor Relations Insight

by Phillip Wilson | Nov 30, 2017 | News

by Phil Wilson

A problem well put is half solved.

John Dewey

We finally have a full, Republican-majority National Labor Relations Board! And a Republican General Counsel! That’s the good news. The bad news? The excitement will wear off in about 2 weeks, when Chairman Phil Miscimarra’s term ends. Then we’ll be back to a 2-2 tie at the NLRB. As you probably know, the Board traditionally does not overturn significant precedent without all 5 members voting. While that wasn’t exactly adhered to in the last administration, it still generally applies. As I mentioned in my last article I am looking forward to the new Board and General Counsel. But chances are good that it will be at least a few more months before we have a solid 3-2 Republican majority in place. Then it will take a little more runway before they can start turning back 8 years of decisions. What can they do in the meantime? A lot. This Board can learn a lot from the Obama Board. Let’s start with rulemaking. It’s true that rulemaking takes a while to get rolling. This is why it’s the perfect thing to concentrate on during this period while we are waiting for another Board member to get nominated and confirmed. The NLRB historically has steered clear of rulemaking. They’ve only engaged in rulemaking a handful of times over the last 80+ years. But the Obama Board engaged in significant rulemaking efforts, including its ambitious ambush election rule. The new Republican Board should learn from this example in three ways. First, there is no reason to steer clear of this important agency power. Rulemaking, unlike the traditional decision-making process, is much harder to challenge or reverse. While several Obama-era rules were effectively challenged, many survived legal challenge (including the ambush rule). And once a rule is final you can only get rid of it by going back through the rulemaking process a second time. Contrast this with Board decisions. These are subject to reversal the next time a case comes up presenting the same issue. This constant back-and-forth of key precedent is one of the most aggravating aspects of the NLRB. Rulemaking will help create more certainty for businesses, employees and unions. Second, now is the time. A number of Obama-era rules got shut down through the Administrative Procedure Act, which allows Congress to revoke rules within a limited period after they’ve gone into effect. That’s why it is critical that these rules happen sooner rather than later. Third, keep each rule limited in focus. It is tempting for agencies to overreach with their rulemaking efforts (like with the overtime rules). I think agencies should think about rulemaking like investing: spread small bets. It is true that this probably consumes more resources in the short term, but it makes each rule enacted more likely to stand on its own and limits any problems if any one rule is overturned by court action. What rules should the Board consider? I thought you’d never ask! Here is my list, in rough order of priority. Your mileage may vary, but any of these would be a great start (and a way to gain back ground lost in the first year of the Trump Board, which may as well be called the last year of the Obama Board).

Minimum election period. While overturning the ambush election rule is a “must do” item (see number 6 below) the primary goal and impact of that rule was to cut election periods. However, that rule didn’t actually enforce a shortened election period, that was just the impact. This new rule would simply say, no matter what procedure happens leading up to it, no election conducted by the Board will occur less than 60 days after a petition. That is the common period provided for other “special elections” in local and state government elections. You could also pick 42 days (the target prior to the ambush rules). This rule gives employees a solid period of time to consider unionization (or decertification) before a vote.
Allow petitions after voluntary recognition. Remove the presumption of majority status whenever an employer voluntarily recognizes a union. This gives employees who object to recognition the opportunity to have the question settled by a secret-ballot election instead of a backroom deal between a union and an employer (who normally only agrees under significant pressure). Another option would be to eliminate voluntary recognition altogether, but that probably requires a statutory change.
Limit “blocking” charges. In most cases today Board regions will block an election any time a union files an unfair labor practice charge prior to an election. It doesn’t happen every time, but the presumption is that it is the union’s option to block the vote. This is often abused and disenfranchises thousands of voters every year. Instead the Board should adopt a rule that only allows an election to be blocked in cases where the union can show that a fair election is impossible. The Board can still impound ballots post-election, but I would also limit the period of time they can be held to something like 60 days post-election which is more than enough time to investigate serious charges of election misconduct.
Appropriate unit. Reinstate that the appropriate unit standard only requires a community of interest, not a showing of an “overwhelming community of interest”; also make clear that micro-units or members only units are presumptively invalid.
Joint employer. Reinstate the “actual control” standard for a finding of joint employer, and clarify that in no case will a franchisor-franchisee relationship be found evidence of joint employer.
Undo the ambush election rule. People should know who is in – and out – of their bargaining unit before they vote in an election. Much of the procedural additions are designed to speed up elections (handled by number 1 above) but reversing many of the procedural changes should happen too.
Jurisdiction limits. These haven’t changed in decades. Raise the jurisdictional limits to cover larger employers who actually have a significant impact on interstate commerce. If possible peg these jurisdictional limits to go up automatically with inflation. While you’re at it decline jurisdiction over people like football players, student assistants, home care aides, and tribal commercial enterprises.
Weingarten only for unionized companies. This rule simply clarifies the current law, that non-union employees do not have the so-called Weingarten right for an employee witness in disciplinary meetings.
Allow withdrawal of recognition. Reinstate the rule allowing employers to withdraw recognition when they have a good faith doubt about a union’s majority status.
Consider corporate campaign activity “picketing” and allow employer to file RM petition after 30-days of activity. Another common abuse today is corporate campaign activity that drags on for months or even years. This rule would allow the company to file an RM petition seeking an election after 30 days of such activity. This option is already part of the statute, but non-picketing activity (or non-recognitional protests) don’t count. This rule would help clear up confusion on that point. If any protest activity has, as part of its goal, representation of employees (like the “Fight for $15 and a Union” protests) it is for recognition and should be capped.