Potential Changes to Labor-Management Relations under the Trump Administration05.22.17
Since his inauguration, President Trump has focused his attention on matters other than those directly affecting U.S. labor laws. But, if the news from last month is any indication, he might finally be turning his attention to this area of the law. On Friday, April 27, 2017, President Trump officially appointed Philip Miscimarra, who is currently serving as the Acting Chairman of the National Labor Relations Board (the "Board"), as the permanent Chairman of the Board.
Chairman Miscimarra's appointment to the Board on a permanent basis would seem to validate many prognosticators' beliefs that President Trump would return the Board to the more business-focused approach followed by previous Republican administrations. Specifically, Member Miscimarra, who has been serving on the Board since August 2013, has dissented from many of the Obama Board's more controversial opinions. For example, he dissented in Murphy Oil USA, Inc., which held that employers violate the National Labor Relations Act if they maintain arbitration agreements with employees that contain class/collective action waivers. He also penned a dissent in Purple Communications, Inc., a 2014 Board decision holding that employers are required to allow their employees to use company email to discussed "terms and conditions of employment" during non-work time, including but not limited to union organizing.
Regarding the Board's Murphy Oil USA, Inc. decision, the matter is still pending before the Supreme Court. Given President Trump's recent appointment of Neil Gorsuch to the Supreme Court, however, it appears increasingly unlikely that the Board's position on class/collective action waivers will prevail in the end. Justice Gorsuch is not only a member of the conservative faction of the Supreme Court, but he has also advocated for years that courts should stop deferring to administrative agencies' interpretations of federal statutes and regulations. Perhaps recognizing the tenuous nature of the Board's position on class/collective action waivers, the Office of the General Counsel released a memorandum directing the Board's various Regions to seek to enter into informal settlement agreements with employers over charges the involving the class/collective action waiver issue in which such agreements are conditioned on the Board's position prevailing before the Supreme Court. A decision by the Supreme Court is expected by the end of the year.
As for the Board's most significant labor-related rule change under the Obama administration, dubbed the "Quickie Election" (or "Ambush Election") rules, it looks like these rules will remain the law of the land for the foreseeable future. Considering the Trump administration has largely remained silent on these particular rules since inauguration, overturning them does not appear to be one President Trump's priorities. Consequently, management should continue to keep up its preparedness through self-assessments, election canvassing and mock campaigns, to counteract union campaign efforts effectively.