by Phil Wilson

How a Trump Administration Could Fix the NLRB

Bob Dylan may have skipped the Nobel Prize ceremonies, and I doubt he’ll be at the inauguration, but I’m sure he’d agree that “the times, they are a changin.”

In just a few days Donald Trump will be inaugurated as America’s 45th President. His transition has felt a lot like his campaign: unconventional, messy, and always interesting to watch.

The list of things Americans want the incoming Trump administration to fix grows longer each day. My guess is aren’t up there at the top of the list of priorities. But I do think there are BIG (or should I say huge) opportunities to improve the way the NLRB does business.

I’d like to take this opportunity to suggest four things the new administration should add to the priorities list. Most of these could be implemented right away and without rulemaking or legislation (although a legislative solution is preferred for many of these to make them permanent).

  1. Nonacquiescence: This is the position that the NLRB and General Counsel take to ignore a Circuit Court decision (or often many Circuit Court decisions) that go against the General Counsel’s views. In October the NLRB got spanked by the DC Circuit and ordered to pay $18,000 in attorney fees to a Michigan health care system for continuing to litigate a case that, “takes obduracy to a new level.” The court found the Board acted in bad faith by continuing to appeal. On the wishlist: Require the NLRB to follow the law in any Circuit in which a case arises and prohibit the General Counsel from handling appeals (all appeals should be handled by the Board’s Solicitor).
  2. Require Secret Ballot Elections. The NLRB orders mail ballot and quick elections more and more often. They allow unions to coerce voluntary recognition from employers using negative PR campaigns. This increases “arm twisting” by unions and prevents the election from having true oversight. On the wishlist: The NLRB should require secret ballot elections in all representation cases unless all parties agree to a mail ballot or non-secret ballot election.
  3. Mandate Minimum Campaign Periods. Since adoption of the “ambush election rule” the average election period has shrunk by nearly one-third. The NLRB should mandate that all election cases have a minimum period from petition to balloting. On the wishlist: The NLRB will not conduct an election within 30 days after a petition is filed unless all parties agree to an earlier date.
  4. Discovery and Evidence in Hearing: The NLRB does not provide copies of witness statements, affidavits or advance copies of documents in hearings until a witness is called to the stand. This results in “hearing by ambush” and is a terrible way to determine fact issues. On the wishlist: The General Counsel is required to provide copies of affidavits, statements, and any other documents it intends to put into evidence in an evidentiary hearing or trial in advance of the hearing. Anything not provided in advance will not be allowed into the record.

These 4 reforms are just a beginning, and I haven’t included any of the huge list of NLRB decisions that should be returned to their prior (in many cases decades-long) position. This includes issues like mandatory arbitration agreements, joint employer, protected concerted activity, use of email and other electronic communication, surface bargaining, and many more.

Other high priority changes include increasing the jurisdictional limits (these limits have not changed in decades and hurt very small companies) and removing charities, Indian tribes, and adjuncts and the like from Board jurisdiction.

The case law and jurisdictional changes will take some time to achieve. However, the four reforms I suggest above could happen “day one” after a new Trump Board is sworn in. That would be a great day one.

Best wishes for a happy holiday season and a prosperous (and exciting) New Year!