A Republican president can reassert management rights


Donald Trump will have the ability to impact several key federal government agencies, including the National Labor Relations Board and the U.S. Department of Labor.

National Labor Relations Board
The current NLRB chairman, Mark Gaston Pearce, pushed through the NLRB "quickie election" rule and has presided over many decisions that have adversely affected management, involving issues including the right to hire permanent replacements during strikes; attacking employee handbooks that apply to non-union employees; attacking supervisory status; changing the law on joint employer status; and others.

The president appoints the five members of the NLRB and the Board's general counsel. As President Trump takes office on January 20, the NLRB has two vacancies. The current composition of the Board's three members is that two are from strong union backgrounds, while only one – Member Miscimarra – has a management background.

President Trump can immediately appoint two new members to the NLRB who will have Republican, management backgrounds. Such a new board would be composed of three Republicans and two Democrats. This is in keeping with the long tradition that the composition of the board members consists of three members from the president's political party.

The National Labor Relations Act provides that the President can choose the chairman of the NLRB. Thus, President Trump would have the statutory right to name one of the three Republican members of the board to be a new chairman. Such a new chairman, through the decision-making process, could begin the journey to reverse some of the decisions of the last four years.

A newly composed NLRB, if it chose to do so, could start the process of repealing the quickie election rule. This rule has dramatically reduced the amount of time management has to prepare for and campaign against a union organizing drive.

Before the advent of the quickie election rule, on average, an employer had 42 days between the date of the filing of an election petition and the date of the election itself. The quickie election has reduced that to, on average, 23 days. This has had an adverse impact on the First Amendment rights of employers everywhere.

A newly composed Board could restore precedent on many issues, including:

  • Reversing the decision in D.R. Horton, holding that it is a violation of the National Labor Relations Act to require employees to sign agreements requiring the employees to submit disputes to binding arbitration.
  • Reversing the Browning Ferris joint employer decision that forced a company to bargain with a union, even though the company did not directly control the wages, hours and working conditions of the employees.
  • Reversing or modifying many of the outrageous social media policies that have tolerated terrible disparagement of managers and management.
  • Returning to the clear precedent that employers have a right to hire permanent replacements in the event a union goes on strike.

These are just a few of the many issues that have adversely impacted businesses in recent years. A new board could right these wrongs against management.

The president also appoints the NLRB general counsel to a four-year term. The current general counsel, Richard Griffin, was appointed by President Obama on Nov. 4, 2013. On Nov. 4, 2017, less than a year from now, President Trump can appoint a new general counsel.

The general counsel of the NLRB wields great power. That position determines which cases are prosecuted against employers. The general counsel frames issues that are tried before administrative law judges, which then make their way to the five-member NLRB. Thus, it is the general counsel that has pushed the issue of joint employers, social media cases, etc. A new general counsel with a management background can reverse that course.

U.S. Department of Labor
What about the U.S. Department of Labor's new overtime rule, scheduled to go into effect on Dec. 1, 2016? The new president does not take office until Jan. 20, 2017. What happens in the meantime?

On Nov. 16, a federal court of Texas will conduct a hearing on a motion for a preliminary injunction. If that motion is successful, the rule will not go into effect.

The U.S. House of Representatives has passed a bill to delay the implementation of the rule until June 1, 2017. The U.S. Senate is considering a similar bill. Other bills have been introduced into Congress to dramatically modify the rule.

Resolutions have been introduced into both Houses of Congress under the Congressional Review Act, disapproving of the rule. It is widely speculated that the House and the Senate are going to wait until after President Trump is inaugurated to pass these resolutions.

This writer's sources inform him that the Republican leadership of the House of Representatives had the overtime rule high on its agenda when it returned for a four-day session on Nov. 14. The House will be looking for ways to at least delay the implementation of the bill.

A new president will, no doubt, appoint a new secretary of labor, who could immediately begin steps to stop, repeal and/or modify the rule.

A newly appointed secretary of labor could also stop dead in its tracks the DOL's Persuader Rule, requiring broad public disclosure of information by law firms that advise employers about the effects of unionization. The rule was enjoined by a federal court and is currently being litigated. A new secretary of labor could move to repeal the rule.

U.S. Supreme Court
Upon being sworn in, the new president must fill a vacancy on the U.S. Supreme Court. As these labor issues wind their way through the courts, the new Supreme Court justice could make all the difference.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.

Zinser, Wage and Hour, NLRB


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