The National Labor Relations Board (NLRB) under President Donald Trump is remaking the American workplace by methodically undoing key pro-union rulings the board made under former President Barack Obama.
The rapid reversal in many ways underscores the increasing polarization of the national political debate and the whiplash that employers and unions alike face every time the White House changes hands.
The NLRB, created by the National Labor Relations Act in 1935, is comprised of five members, all appointed by the president. The chair and two members of the board are traditionally from the president's party. The remaining two members are from the opposition party.
Republican John Ring currently serves as NLRB chair. The other two Republicans on the board are Marvin Kaplan and William Emanuel. One Democrat seat on the board is vacant and the other is held by Lauren McFerran since December 2017.
NLRB rulings traditionally vacillated from one administration to another in relatively narrow range, reflecting either a pro-employee or pro-employer bias. The limits began to widen significantly during the Obama-era NLRB as a series of decisions and rule-making initiatives significantly tilted the playing field in favor of expeditious union organizing.
But the new board has issued a steady series of rulings that have effectively undone the Obama-era edicts. The highlights of these changes include:
Joint Employer Status
Organized labor has long sought to establish a joint employer relationship between franchisors and franchisees. The reason is simple - locally owned franchisees may not have deep pockets, but parent organizations usually do. In its long-awaited McDonalds decision, the new board clearly found that the franchisor is not a joint employer with its franchisees. While final rule making hasn’t been issued in this regard, it is clear franchisors can breathe a sigh of relief.
The prior board in its Specialty Healthcare decision made it easy for unions to isolate small, easier-to- organize groups of employees. The new board has reverted to a broader “community of interest” standard and a clear, three-part test (Boeing Company).
In a prior decision (Banner Estrella), the board prohibited employers from requiring employees to keep workplace investigations confidential. The new board has overturned that ruling (Apogee Retail) and provides a more common-sense approach to workplace investigations.
The prior board’s rule making in 2014 had the effect of accelerating the union organizing process and hindering employer response to union activity. The new board rule making: (1) increases most time frames and deadlines by a factor of two; (2) requires that ballots be automatically impounded upon challenge; and (3) allows challenges up front, prior to voting, versus the 2014 approach of ‘let everyone participate and we’ll sort it out later.’
As a result of the NLRB’s 2014 Purple Communications decision, employers could not prohibit employees from accessing company email for union-related communications. The new board (Caesar’s Entertainment) restores employer rights to prohibit use of its email systems for non-business purposes.
While these rulings are good news for employers, they don’t eliminate the prospect of employees seeking third-party representation. Fair and equitable treatment of employees, employing supervisors who know how to lead (not manage) and effective workplace communications are the employer’s best tools in making unions unnecessary.