What to Expect From the Reshaped National Labor Relations Board
With President Donald Trump's nominees on their way to the Senate, labor and employment attorneys say the National Labor Relations…
June 28, 2017 at 06:01 PM
4 minute read
With President Donald Trump's nominees on their way to the Senate, labor and employment attorneys say the National Labor Relations Board is poised to roll back regulations with its first Republican majority in nearly a decade.
Management-side attorneys and anti-union advocates are hopeful Obama-era regulations will be scuttled in favor of business-friendly practices.
Trump recently picked Los Angeles-based attorney William Emanuel of Littler Mendelson and Marvin Kaplan, a lawyer who works at a division of the Occupational Safety and Health Administration, for two open board seats. They would join Republican Chairman Philip Miscimarra and Democratic members Mark Gaston Pearce and Lauren McFerran.
While hundreds of pending board cases, the labor and employment community is expecting high-profile rulings from the board to be addressed with the new makeup. Here's a rundown of three top issues experts and stakeholders are watching.
Who Is Considered a Joint-Employer?
A case that up-ended a 30-year precedent defining a joint-employer relationship set off opposition from the business community. Such a relationship between two or more businesses essentially means both determine or share responsibilities, such as pay, job duties and schedules and therefore are responsible jointly for meeting protection laws for employees.
The case—Browning-Ferris Industries v. National Labor Relations Board—is being considered before the U.S. Court of Appeals for the D.C. District. A panel of judges heard argument in March.
The case stemmed from a group of workers in California who, attempting to organize, argued that the company was a joint employer with its contractor. The NLRB revised its joint employer test in the case, which previously held that the potential joint employer had to be direct and immediate as to employment actions.
Under the new standard, the board has a two-part test that allows the control to be direct, indirect or reserved right to control. Some major companies hope that the NLRB will revert to the previous standard in this case. Groups that support the ruling said it allowed more workers to come to the bargaining table.
Are Graduate Students Employees and Can They Unionize?
Last year, the board overturned a ruling that denied collective bargaining rights to graduate students and teaching assistance under the National Labor Relations Act, in a case involving Columbia University. This issue has been swirling in the news with Yale University graduate students holding high-profile fasts to demand unionizing rights and other cases pending. The NLRB oversees graduate student unions on private campuses. State law governs public campuses right to collectively bargain. This decision overturned a previous 2004 ruling. Private universities are against the current standard and have delayed bargaining attempts on certain campuses.
Who Can Form Unions? Are Micro Units Legal?
Businesses also are hoping the board's decision in Specialty Healthcare & Rehabilitation Center of Mobile will be overturned. The decision essentially made way for fragmented unions to form.
When filing an election petition with the NLRB, those seeking to unionize must identify a group of employees. Micro-units decrease the size of the unit to make it easier to organize for workers. The decision found that a bargaining group could be made up of a group of employees who share a community of interest. Employers argue that it would leave the company bargaining with only part of the workforce.
Before the 2011 decision, the NLRB previously disapproved of the micro-units. The chairman's words could foreshadow where the board would settle on this matter in the future with the new pro-business nominees. Miscimarra has argued that the case was wrongly decided and affords too much “deference to the petitioned-for unit in derogation of the mandatory role that Congress requires the board to play 'in each case'” when making bargaining determination.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2025 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrump Administration Faces Legal Challenge Over EO Impacting Federal Workers
3 minute readThree Akin Sports Lawyers Jump to Employment Firm Littler Mendelson
High Court Rejects 'Heightened' Standard for Employers Defending FLSA Cases
Supreme Court Wrestles With Disabled Ex-Firefighter's Discrimination Case
Trending Stories
- 1Government Attorneys Face Reassignment, Rescinded Job Offers in First Days of Trump Administration
- 2Disney Legal Chief Sees Pay Surge 36%
- 3Legaltech Rundown: Consilio Launches Legal Privilege Review Tool, Luminance Opens North American Offices, and More
- 4Buchalter Hires Longtime Sheppard Mullin Real Estate Partner as Practice Chair
- 5A.I. Depositions: Court Reporters Are Watching Texas Case
Who Got The Work
J. Brugh Lower of Gibbons has entered an appearance for industrial equipment supplier Devco Corporation in a pending trademark infringement lawsuit. The suit, accusing the defendant of selling knock-off Graco products, was filed Dec. 18 in New Jersey District Court by Rivkin Radler on behalf of Graco Inc. and Graco Minnesota. The case, assigned to U.S. District Judge Zahid N. Quraishi, is 3:24-cv-11294, Graco Inc. et al v. Devco Corporation.
Who Got The Work
Rebecca Maller-Stein and Kent A. Yalowitz of Arnold & Porter Kaye Scholer have entered their appearances for Hanaco Venture Capital and its executives, Lior Prosor and David Frankel, in a pending securities lawsuit. The action, filed on Dec. 24 in New York Southern District Court by Zell, Aron & Co. on behalf of Goldeneye Advisors, accuses the defendants of negligently and fraudulently managing the plaintiff's $1 million investment. The case, assigned to U.S. District Judge Vernon S. Broderick, is 1:24-cv-09918, Goldeneye Advisors, LLC v. Hanaco Venture Capital, Ltd. et al.
Who Got The Work
Attorneys from A&O Shearman has stepped in as defense counsel for Toronto-Dominion Bank and other defendants in a pending securities class action. The suit, filed Dec. 11 in New York Southern District Court by Bleichmar Fonti & Auld, accuses the defendants of concealing the bank's 'pervasive' deficiencies in regards to its compliance with the Bank Secrecy Act and the quality of its anti-money laundering controls. The case, assigned to U.S. District Judge Arun Subramanian, is 1:24-cv-09445, Gonzalez v. The Toronto-Dominion Bank et al.
Who Got The Work
Crown Castle International, a Pennsylvania company providing shared communications infrastructure, has turned to Luke D. Wolf of Gordon Rees Scully Mansukhani to fend off a pending breach-of-contract lawsuit. The court action, filed Nov. 25 in Michigan Eastern District Court by Hooper Hathaway PC on behalf of The Town Residences LLC, accuses Crown Castle of failing to transfer approximately $30,000 in utility payments from T-Mobile in breach of a roof-top lease and assignment agreement. The case, assigned to U.S. District Judge Susan K. Declercq, is 2:24-cv-13131, The Town Residences LLC v. T-Mobile US, Inc. et al.
Who Got The Work
Wilfred P. Coronato and Daniel M. Schwartz of McCarter & English have stepped in as defense counsel to Electrolux Home Products Inc. in a pending product liability lawsuit. The court action, filed Nov. 26 in New York Eastern District Court by Poulos Lopiccolo PC and Nagel Rice LLP on behalf of David Stern, alleges that the defendant's refrigerators’ drawers and shelving repeatedly break and fall apart within months after purchase. The case, assigned to U.S. District Judge Joan M. Azrack, is 2:24-cv-08204, Stern v. Electrolux Home Products, Inc.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250