What to Expect From the Reshaped National Labor Relations Board

National Labor Relations Board, located at 1099 14th Street, NW, in Washington, D.C. April 16, 2012. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.


With President Donald Trump’s nominees on their way to the Senate, labor and employment attorneys say the National Labor Relations Board is poised to roll back regulations with its first Republican majority in nearly a decade.

Management-side attorneys and anti-union advocates are hopeful Obama-era regulations will be scuttled in favor of business-friendly practices.

Trump recently picked Los Angeles-based attorney William Emanuel of Littler Mendelson and Marvin Kaplan, a lawyer who works at a division of the Occupational Safety and Health Administration, for two open board seats. They would join Republican Chairman Philip Miscimarra and Democratic members Mark Gaston Pearce and Lauren McFerran.

While hundreds of pending board cases, the labor and employment community is expecting high-profile rulings from the board to be addressed with the new makeup. Here’s a rundown of three top issues experts and stakeholders are watching.

Who Is Considered a Joint-Employer?

A case that up-ended a 30-year precedent defining a joint-employer relationship set off opposition from the business community. Such a relationship between two or more businesses essentially means both determine or share responsibilities, such as pay, job duties and schedules and therefore are responsible jointly for meeting protection laws for employees.

The case—Browning-Ferris Industries v. National Labor Relations Board—is being considered before the U.S. Court of Appeals for the D.C. District. A panel of judges heard argument in March.

The case stemmed from a group of workers in California who, attempting to organize, argued that the company was a joint employer with its contractor. The NLRB revised its joint employer test in the case, which previously held that the potential joint employer had to be direct and immediate as to employment actions.

Under the new standard, the board has a two-part test that allows the control to be direct, indirect or reserved right to control. Some major companies hope that the NLRB will revert to the previous standard in this case. Groups that support the ruling said it allowed more workers to come to the bargaining table.

Are Graduate Students Employees and Can They Unionize?

Last year, the board overturned a ruling that denied collective bargaining rights to graduate students and teaching assistance under the National Labor Relations Act, in a case involving Columbia University. This issue has been swirling in the news with Yale University graduate students holding high-profile fasts to demand unionizing rights and other cases pending. The NLRB oversees graduate student unions on private campuses. State law governs public campuses right to collectively bargain. This decision overturned a previous 2004 ruling. Private universities are against the current standard and have delayed bargaining attempts on certain campuses.

Who Can Form Unions? Are Micro Units Legal?

Businesses also are hoping the board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile will be overturned. The decision essentially made way for fragmented unions to form.

When filing an election petition with the NLRB, those seeking to unionize must identify a group of employees. Micro-units decrease the size of the unit to make it easier to organize for workers. The decision found that a bargaining group could be made up of a group of employees who share a community of interest. Employers argue that it would leave the company bargaining with only part of the workforce.

Before the 2011 decision, the NLRB previously disapproved of the micro-units. The chairman’s words could foreshadow where the board would settle on this matter in the future with the new pro-business nominees. Miscimarra has argued that the case was wrongly decided and affords too much “deference to the petitioned-for unit in derogation of the mandatory role that Congress requires the board to play ‘in each case’” when making bargaining determination.