As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.
Although the Board’s recent decision in Dish Network, LLC probably would have yielded the same result with a full Trump Board, Acting Chairman Miscimarra’s concurring opinion likely signals a future relaxing of the Board’s standards for evaluating whether certain employer policies and employment agreements violate employee Section 7 rights under the National Labor Relations Act (NLRA). In Dish Network, the Board concluded that the employer’s mandatory arbitration policy and agreement violated Section 8(a)(1) of the NLRA. Following its jurisprudence from prior cases decided during the Obama Administration, the Board concluded that the arbitration agreement constituted an 8(a)(1) violation because it “specifies in broad terms that it applies to ‘any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.’” As a result, the Democratic Board Members concluded that employees would “reasonably construe” the agreement to prohibit the filing of Board charges and therefore to interfere with their Section 7 rights in violation of Section 8(a)(1). Separately, the Democratic Board Members also concluded that the agreement’s confidentiality provision, which prompted the employer to instruct an employee not to discuss his suspension from employment with co-workers, also violated Section 8(a)(1).
In his concurring opinion, Acting Chairman Miscimarra agreed with the ultimate Section 8(a)(1) violation findings, but noted his disagreement with using a test that asks whether employees might “reasonably construe” a policy as violating their Section 7 rights instead of determining whether the policy actually does violate those rights. Instead, as he has explained in numerous dissenting opinions to date, he believes an arbitration agreement “may lawfully provide for the arbitration of NLRA claims, and such an agreement does not unlawfully interfere with Board charge filing, at least where the agreement expressly preserves the right to file claims or charges with the Board or, more generally, with administrative agencies.” With respect to the confidentiality provision, Acting Chairman Miscimarra stated that “there may be circumstances where an arbitration agreement’s confidentiality provision may be lawful based on justifications unrelated to the NLRA, particularly when the matter being arbitrated does not implicate NLRA-protected activity.” Because the confidentiality provision in question in Dish Network implicitly required that any unfair labor practice claims would need to be kept confidential, he agreed with his colleagues that the Dish Network provision violated Section 8(a)(1).
Although the NLRB probably is the most politically influenced of the various federal employment-related agencies, it takes time for Board law to catch up to the change in presidential administrations. As a result, employers can anticipate perhaps as much as another year or more living under the philosophies of and standards set by the Obama Board and must maintain their policies accordingly. In time, however, employers can expect that a Republican Board majority will relax some of the standards that were established during the last eight years. At least, that is, until there is another change in administration…