We may very well be on the eve of a sea-change in federal regulation under President Trump’s new administration, especially in regard to the National Labor Relations Board’s aggressively pro-union decision making.
Don’t expect a lot of changes overnight, however. A few speed bumps need to be cleared before we will be able to see significant policy changes and new landmark decisions from the board.
Of the five total seats on the board, two are vacant and available to be filled by Trump. With one Republican currently serving, Philip Miscimarra, that would allow the new President to nominate two more Republicans to fill those vacant seats, creating a 3-2 Republican majority for the first time in many years.
The speed bump here arises from the requirement that the Senate approve those nominations. Although the Republicans enjoy a majority in the Senate, expect the Democrats, who are heavily dependent on union money and muscle, to deploy every delaying tactic they can grab ahold of.
Another problem: NLRB General Counsel Richard F. Griffin Jr., whose job also is subject to approval by the Senate, is finishing up his current four-year term, which doesn’t end until this November.
Prior to becoming general counsel, Griffin served as an NLRB Board Member from January 2012 to August 2013, when the Supreme Court ruled his recess appointment by President Obama was illegal.
Before joining the board, he was general counsel of the International Union of Operating Engineers.
Because Griffin’s term as board counsel doesn’t end until November, he will continue in place, where he can apply the brakes on the new Republican majority at the board.
This fact is significant because of the convoluted and time-consuming process by which the board makes policy, a process which is influenced as much by the actions of the general counsel as it is by the board members – if not more so.
More than any other agency does, the board makes and changes policy by dealing with individual cases involving charges of unfair labor practices. Each one of those cases is referred to the full board by 46 NLRB regional directors around the country, who are under the direct supervision and control of the general counsel.
Like Griffin and the Obama era board members, these regional directors currently come from the ranks of the pro-union bar.
Along with their boss Griffin they are not likely to voluntarily pass up to the new board cases that could upset the last eight years of radically pro-union policy changes which reshaped labor law by tilting the scales in favor of the unions.
Trump is reportedly mulling nominating Peter Kirsanow to the board. A former member of both the NLRB and U.S. Commission on Civil Rights, his law firm, Benesch Friedlander Coplan & Aronoff, has logistics providers among its clients.
Kirsanow served as labor counsel for the City of Cleveland and was senior labor counsel for the once mighty but now long-defunct Leaseway Transportation Corp. He also testified before the Senate Judiciary Committee on the nominations to the Supreme Court of John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan.
Regardless of who is eventually seated, the new board members will find they have their work cut out for them. Eight years of pro-union decisions have created a tall mountain for them to climb.
When it comes to undoing this mess, the new board members will find strong allies in both the Republican-controlled Congress and the business community (AA, 11-30-16, P. 3).
The NLRB is just one of many agencies in the federal government that were repurposed by the Obama administration with the goal of helping unions make up for some of the ground they had lost over the years in the private sector.
This means there will be a lot of spade work to do. Over the past eight years the NLRB has rewritten the law by issuing a seemingly never-ending list of decisions aimed at making it easier for unions to organize employees and win complaint cases.
These actions ranged from sweeping to incremental – apparently nothing was too small for the board to tackle when it came to its apparent desire to promote unionization throughout all corners of the economy.
For example, the board has been creative in extending its jurisdiction to non-union employers in regard to employee handbooks and policies that control what employees say on social media
The new year may see some attempts to pass a nationwide right-to-work law and new laws allowing union members to refuse to pay that portion of their dues that goes to political contributions. One suggestion is a law requiring a revote on union representation on a regular basis.
But whatever happens, expect big changes ahead.