A Donald Trump Presidency and the NLRB: Changes Are Sure to Come

Q: Our company is among the 12 percent that still has a unionized workforce. What do you see happening in labor law under the Trump Administration?

A: Although President Trump was inaugurated on January 20, 2016, it will take several months or longer before employers and unions alike learn how Trump will affect the National Labor Relations Board (NLRB or Board) and labor law. Trump himself is no stranger to labor disputes. In fact, in July 2016, Trump lost a bid to keep one of his Las Vegas properties union-free after the Board ordered him to bargain in good faith with a newly certified union.

The most immediate impacts of a Trump presidency likely will come with his NLRB appointments. In this regard, it is important to keep in mind that the Board is supposed to be composed of five members, each serving a five-year, staggered term. Member Philip A. Miscimarra’s (R) term expires in December 2017, Board Chairman Mark Gaston Pearce’s (D) term expires in August 2018, and Member Lauren McFerran’s (D) term will end in December 2019.

In addition, there currently are two vacant Board seats: Harry I. Johnson’s (R) term expired in August 2015; however, President Obama did not nominate a replacement. Similarly, Kent Y. Hirozawa’s (D) term expired in August 2016, but the Senate has not acted on Obama’s re-nomination of Hirozawa.

Trump has already taken his first step regarding the Board by appointing Board Member Miscimarra (R) as Acting Chairman of the NLRB. The NLRB’s press release, dated January 26, 2017, outlined Miscimarra’s resume as including acting as a Senior Fellow at the University of Pennsylvania’s Wharton Business School in the Wharton Center for Human Resources, a partner with the management-side labor and employment law firm of Morgan Lewis & Bockius LLP, and a labor and employment attorney with management-side law firms Seyfarth Shaw LLP, Murphy Smith & Polk PC (now the Chicago office of Ogletree, Deakins, Nash, Smoak & Stewart, PC), and Reed Smith Shaw & McClay (now Reed Smith LLP).

Given Miscimarra’s promotion and the other upcoming Board appointments, one of the first tangible results of a Trump victory vis-à-vis labor almost certainly will produce a Republican majority and, along with it, a presumed change in Board law more favorable to employers.

In addition to the appointment of Board members, Trump also will have the opportunity to appoint the Board’s new general counsel. This is a significant appointment because the general counsel makes the final decision whether to issue unfair labor practice complaints. The current general counsel, Richard F. Griffin (D), previously the general counsel of the International Union of Operating Engineers, is generally considered by employers to have been an activist general counsel. Trump likely would not re-nominate Griffin to his position, permitting a more conservative, pro-employer attorney to assume the role of general counsel and gatekeeper to the Board.

One way for Trump to have an immediate impact would be to nullify some of President Obama’s Executive Orders. Two Executive Orders that may be on the chopping block include Executive Order 13495 (Nondisplacement of Qualified Workers Under Service Contracts) and Executive Order 13706 (Paid Sick Leave for Employees of Federal Contractors).

Turning to NLRB caselaw, employer groups have their eyes on several Board decisions. Perhaps one of the most salient cases inimical to employer interests is the Board’s new joint-employer rule announced in BFI Newby Island Recyclery (NLRB 2015). In that case, the Board ruled that two or more entities are joint employers of a single work force “if they both share or co-determine those matters governing the essential terms and conditions of employment.”

In a nutshell, joint-employer arguments allow unions to drag employers into a labor dispute or union organizing drive by alleging that more than one employer actually employs a particular employee group. One of Trump’s properties actually was implicated in this type of dispute in 2016 at the Trump National Doral golf resort in south Florida. In that case, catering workers claimed they were not properly paid for an event at Trump’s golf course, and a federal judge found that Trump’s golf resort might be liable as a joint employer with the staffing agency that hired the workers. We may see quick action on this line of cases with a reconstituted Trump Board.

Another line of cases that may be on the new NLRB’s chopping block is Specialty Healthcare & Rehabilitation Center of Mobile (NLRB 2011). In that case, the NLRB found that a group of certified nursing assistants at a nursing home may compose an appropriate bargaining unit without including all other non-professional employees. Specialty Healthcare argued for a more traditional, facility-wide “service and maintenance unit,” including other non-professional workers who traditionally would be included in a proposed unit.

Specialty Healthcare was followed a few years later by Macy’s, Inc. (NLRB 2014). There, the NLRB affirmed a direction of election for a proposed bargaining unit that included only the store’s cosmetic and fragrance department sales employees. The proposed unit excluded all other sales employees; i.e., other sales employees working on the sales floor. The Board majority consisting of Chairman Pearce (D) and Members Hirozawa (D) and Schiffer (D) concluded that the cosmetics and fragrance employees at a Macy’s retail store was appropriate.

The micro bargaining unit appears to be ripe for attack by a Trump Board because permitting a union to represent a very small group of employees in a larger plant or facility gives unions a foothold on the employer’s property, making it much easier for union advocates to solicit other, non-represented employees.

Of course, this article touches only briefly on some of the impacts of a Trump presidency on labor and employment issues. Other issues we may address in the future include Trump’s U.S. Supreme Court and other federal court nominees and nominations to numerous agencies, including the Department of Labor, Equal Employment Opportunity Commission, Occupational Safety and Health Administration, and Mine Safety and Health Administration. MSEC will keep you posted as developments occur.

These materials are general in nature not to be construed as the rendering of legal or management advice. Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.