At the NLRB, GOP Board Members Show How to Play Hard Ball

Published December 21st, 2017 -  - 12.21.177


While the media was focusing on the drama over the Republican tax bill, last week the new Republican majority on the National Labor Relations Board issued five decisions overturning precedents:  UPMC, Hy-Brand Industrial Contractors, The Boeing Company, Raytheon Company, and PCC Structurals, Inc. Sharon Block has provided a short summary of each of these cases here.  While each decision was substantively flawed, the substance of the decisions was not a surprise.  But, as Block has observed, what was genuinely shocking was the speed with which they were issued and the flouting of procedural norms.  The message that was delivered, like the message delivered last year when Republicans in the Senate refused to even consider President Obama’s nomination of Merrick Garland for the Supreme Court, is that the Republicans play to win.

The Chamber of Commerce and Republicans in Congress often criticized the Obama NLRB for overturning precedent.  But even if employers ended up on the losing side, they had no cause to claim that they were denied a fair hearing.  Time and again, before the Obama Board overturned precedents, it first issued invitations to interested parties to file briefs addressing the matters under consideration.  The Board, in turn, responded to the arguments raised in those briefs when it eventually issued its decisions.  By contrast, the five decisions issued last week came out of the blue, with no notice to the public.  In fact, in three of the cases, no party had even challenged the existing precedent.  And in a fourth case, the Board took a dispute involving welders at a factory and used it to announce a new rule for cases involving non-acute health care facilities.

The two Trump appointees to the NLRB, Marvin Kaplan and William Emanuel, took office in August and September, respectively.  Prior to assuming office, Member Kaplan had never practiced labor law.  Thus, he had no experience in the practical application of the issues confronting the NLRB.  In a written statement submitted to the Senate at his confirmation hearing, Kaplan pledged that he would “approach each case impartially, respect longstanding precedent, stay true to the tenets of statutory construction, endeavor to bridge the divisions at the NLRB, [and] seek public input when appropriate.”  At his confirmation hearing, Kaplan promised under oath that he would decide cases “based on the facts before me,” and that he would not prejudge an issue.  It’s hard to see how he could square that promise with his actions in these cases.

In the Hy-Brand case, the three Republican Board members overturned Browning-Ferris Industries of California, and announced a new standard for deciding when two entities are joint employers even though there were no facts before the Board that implicated the issues where the new Trump Board differed from the Obama Board.  Likewise, in Boeing, the Board took a case involving a rule prohibiting workers from taking photographs and used that to announce that it will always uphold “rules requiring employees to abide by basic standards of civility” regardless of the potential adverse impact on rights protected by the NLRA.  Even if you’re not offended by that conclusion, you might agree that it would have been good form to at least wait until the issue was presented before announcing the new rule.  For years, Board Members have not so subtly indicated that they were willing to consider overturning certain precedents by dropping footnotes indicating that they do not “pass” on the validity of a particular case.  At other times, the Board has explained that it was relying upon a particular precedent only because no party had challenged that precedent.  But, the guiding principle has generally been, in the words of Chief Justice Roberts, that “if it is not necessary to decide more to a case, then … it is necessary not to decide more to a case.”  While it can be helpful for the Board to use adjudication to lay out broad rules, until now the understanding has been that it will at least wait until the issue is clearly presented.

The only apparent justification for the rush to release these five decisions is that Chairman Miscimarra’s term ended on Saturday.  But, President Trump will have an opportunity to name a successor, so even on purely partisan grounds, there is no excuse for the rush to judgment.

Without any apparent irony, in the Boeing case, the Republican majority justified overturning a thirteen year-old decision (a decision by the Bush Board) by referring to the Board’s responsibility to “promote labor relations stability.”  These cases will have the exact opposite effect not just in the short term, but also because now future Democratic-majority Boards will no longer feel bound by procedural norms that have acted as a check on further abrupt swings from one administration to the next.  Unions had a long list of anti-worker Board decisions that they wanted the Obama NLRB to overturn.  But many of those precedents are still on the books because the issues were never presented to the Board.  If the circuit courts allow the Trump Board to reach out and decide questions that are not squarely presented, then we can expect a series of head-spinning reversals as soon as there is a Democratic majority on the Board.

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