Labor Relations: Reversal, Modification of Obama-era Policies Will Take Time

January 06, 2017

Though one of the most controversial legacies of the Obama administration has been the pro-union tilt of its National Labor Relations Board, restoring balance will take some time because of the quasi-judicial manner in which the agency operates.

Board Composition  Democrats currently have a 2-1 majority on the five-Member Board.  President-elect Trump has an opportunity to quickly provide a Republican majority by filling the two open seats either with recess appointments or nominations followed by a quick confirmation by the Senate.  Neither of these occurred in the first year of the George W. Bush administration, thus slowing needed corrections following eight years of a Clinton Board.  At the end of 2016, HR Policy joined over 130 other business groups on a letter to Vice President-elect Mike Pence urging him as head of President-elect Donald Trump's transition team "to quickly fill the two vacancies at the National Labor Relations Board with qualified experts."  Meanwhile, the powerful position of General Counsel, which has a major impact on the Board’s agenda, will continue to be held by Democrat Richard Griffin until his term expires in November 2017. 

Impact of Case-By-Case Adjudication  According to a new report by Littler's Workplace Policy Institute, the Obama Board overturned a total of 4,559 years' worth of long-standing precedent through decisions in 91 cases.  Yet, even once a Republican majority is established, the Board's process of interpreting the law through case-by-case adjudication means it will have to consider numerous cases to reverse these decisions.  This task is made even more difficult by the fact that the Board can only consider those issues presented by the cases brought before it upon appeal from an administrative law judge or regional director decision.  However, many cases get resolved through settlement by the parties before reaching that level.  Thus, it will likely take the Trump Board at least four years to deal with the controversial policies that include: 

  • Expansion of joint employer liability and bargaining obligations;
  • Fragmentation of workplaces into separate bargaining units ("micro units");
  • Employment status of gig economy workers and other independent contractors;
  • Expanded union access to employers’ premises and electronic communication systems; and
  • Hyper-scrutiny of social media and other workplace policies to determine whether they interfere with employees' right to engage in "concerted activities."

Potential Exception: Ambush Election Rules  The one exception to relying on adjudication to reverse policy is the expedited election procedures that were implemented by the Board through rule-making.  The new Board could fairly quickly initiate a process to reverse or modify these rules, which have substantially reduced the time in which employees can hear both sides of the unionization question, while also curtailing employers' procedural rights.  However, once a new rule-making process is initiated, it is not clear how long it will then take the new Board to promulgate a final rule.