United States: Change To Occur Slowly At NLRB

Seyfarth Synopsis: At today's client symposium, "First 100 & Beyond: Strategy & Planning Summit for Businesses," Brad Livingston offered insight into the state of the National Labor Relations Board under the Trump Administration.

At today's client symposium on legal developments after 100+ days of the Trump Administration, Brad Livingston, the Chair of Seyfarth Shaw's Labor Relations Practice Group, explained that change will occur — albeit slowly — with the National Labor Relations Board ("NLRB" or "Board").  And he said that the question is whether there will be time for a Trump Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency's history.

Brad explained that while most other agencies that administer federal employment laws may shift their priorities, enforcement agendas, and litigation theories under different presidential administrations, the underlying statutes are ultimately interpreted by the courts. So although the EEOC may advance a new theory under Title VII or the ADEA, the courts will determine what those statutes mean.  And even though the federal courts may differ somewhat in their interpretations from time to time, over a longer period those decisions will end up being harmonized as the law gradually evolves.  As an example, Brad explained how while Title VII itself has remained relatively unchanged, over time the courts have eventually expanded its reach to cover quid pro quo sexual harassment, then hostile environment sexual harassment, same-sex sexual harassment, and now sexual orientation discrimination.

The NLRB is different in that  — rather than the federal courts — the agency itself decides what the National Labor Relations Act ("NLRA") means, and these decisions by the administrative agency are given great deference by the courts as long as they are a permissible interpretation of the law (even where the court might have decided otherwise).  These NLRB decisions principally come from its General Counsel and five-member Board, all of whom are presidential appointees.  Historically, the president has appointed from his political party the General Counsel and three of the five Board members, with the two remaining Board members coming from the other political party.  Thus, and unlike with other employment laws such as Title VII, NLRB decisions regularly shift back and forth as presidential administrations change between the political parties.  So while the NLRA has been essentially unchanged for 70 years, there have been significant swings in how it has been interpreted and applied over that time.

Brad explained that there are two current vacancies on the five-member NLRB.  The Board's Chairman is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019.  The General Counsel is a Democratic appointee whose term ends late this year.  So for the moment, any decisions reached by the Board will continue to have a Democratic and pro-union majority.  And while President Trump has had the opportunity to appoint two additional Republican members to the Board (giving it a Republican majority), in his first 100+ days of office he has not done so.  Even after those appointments are made and then confirmed by the Senate, it will take some time for the new Board members to get up to speed and actively participate in decisions.  With the Republican Board Chairman's term coming to an end in several months, his reappointment or any new appointment and confirmation will likewise take time.

So for the moment, nothing has changed at the NLRB.  And even when Republican appointees eventually constitute the majority of the Board and its General Counsel, change will occur slowly.  While the Board has the authority to use rulemaking (which itself is a time-consuming process), it seldom does so.  Instead, the Board typically changes its interpretation of the law in its decisions regarding the unfair labor practice and union recognition cases brought before it. Significant issues that the Board may wish to address need to "percolate" up in cases pending before it before the NLRB can signal a shift from the interpretations of the prior administration.  Thus, the Board is limited to deciding the issues and cases raised by employers, employees and unions in individual cases. NLRB precedent does not change where there is no case raising that issue.

Brad noted that over the past eight years, the NLRB has issued scores of rulings that both limit the rights of employers and expand the rights of individual employees and unions far beyond the decisions of any previous Democratic administration.  Among many others, he gave examples of decisions that: ban class action waivers in employment agreements; prohibit discipline for certain types of employee misconduct; deem illegal many common employer handbook clauses, policies, and work rules; expand union and employee access to employer and non-employer property; permit employee use of an employer's email systems for union purposes; expedite union elections; permit unions to seek "micro" or "fractured" bargaining units and restrict employer challenges to them; greatly expand joint-employer status; obligate employers to negotiate discipline with unions during initial contract negotiations; restrict a finding of impasse in labor negotiations; restrict employers from hiring permanent replacements during strikes; expand successorship status and the obligation to assume a predecessor employer's labor agreement during the sale of a business; limit the interpretation of contractual waivers of the obligation to bargain with a union; and expand employee status and the right to organize to many college students.

Noting that the employer community wants and expects change from the NLRB, Brad cautioned that the current vacancies have not been filled, the confirmation of new Board members will take time, those new Board members will need to get up to speed before issuing decisions, and any eventual changes to the extraordinary NLRB decisions of the past 8 years are dependent on the same issue arising in a future case. He concluded by noting that we can expect change, but both less and more slowly than most employers would like to see.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions