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.’”
Continue Reading NLRB’s Dish Network decision: A sign of things to come for employer arbitration agreements?