Although its purpose is to interpret the National Labor Relations Act in a fair and impartial way, the National Labor Relations Board (NLRB) has suffered through nearly a decade of unprecedented partisan legal decisions that have the chance to reshape the entire American workforce. 

The board is made up of five members, with three traditionally being from the president’s party. By its nature, the NLRB is tilted in favor of the party that controls the White House.

The Obama Administration 
During President Obama’s eight-year term, a majority of the five-person panel disagreed with prior NLRB decisions that had been in place for a collective total of nearly 4,600 years.

One of the more well-known decisions that has left small businesses scrambling for legal aid is a change to the definition of joint employer. In 2015, the board drastically altered the definition of which businesses are joint employers and responsible for the labor practices of their subcontractors or franchisees. Previously, the board ruled that a business was a joint employer if it exercised direct and immediate control over another business’ employees. 

However, with its 2015 decision, the board ruled that businesses would be held liable for labor practices even if the business had unexercised potential control over another—meaning they could be sued because there was a chance they could have exercised control.

Another decision with far-reaching implications is the ambush election rule. In 2014, the NLRB drastically altered the process in which it oversaw union elections and the timetable in which they take place. 

The new rulemaking made it possible for unions to pressure employees and take away an employer’s right to speak to its employees all in a time frame that no employee could receive an adequate or balanced amount of information on whether to vote in favor of unionization.

In another decision, the persuader rulemaking sought to take away a business’ right to seek legal representation when its employees decided to hold a union vote. In late 2016, a federal court permanently enjoined the persuader rule, and in June 2017 the Department of Labor under President Trump proposed to eliminate the rule entirely. 

The board also tilted the unionization process in favor of organized labor when it allowed for the formation of “micro-unions” in a workplace. These micro-unions are small, fractured bargaining units that exist for the purpose of separating workers into small groups so that unions can gain a foothold in a workplace.

The Trump Administration Following the Obama NLRB, President Trump has sought to return it to its true mission of being a neutral arbiter of labor law.

With the terms of current NLRB members expiring, the president nominated Marvin Kaplan and William Emanuel to fill the vacated seats. Kaplan, who served as chief counsel to the Occupational Safety and Health Review Commission, and Emanuel, a veteran labor attorney with decades of experience, represent an attempt to bring stability back to the board. 

The Senate confirmed both board members earlier this year. 

The president also nominated Peter Robb to serve as general counsel, which is an important position that determines which cases will go to the administrative courts.

Looking toward the future, the board will continue to need qualified candidates to fill vacated positions. 

In December, the term of NLRB Chairman Phil Miscimarra will expire, and the president and Senate will need to swiftly move forward with someone to ensure there are no lapses in cases and so that the board can continue to fulfill its legal obligations.
 
Drew Schneider is director of legislative affairs for Associated Builders and Contractors. For more information, email schneider@abc.org or visit abc.org/en-us/politicspolicy