By Carl Horowitz

In recent years, as the Union Corruption Update has noted, the National Labor Relations Board might as well be called the National Organized Labor Relations Promotion Board. This assessment may need some revision. Last month, President Trump nominated Marvin Kaplan and William Emanuel, each an experienced labor lawyer, to fill two vacancies at the normally five-member NLRB. The board is primed to revisit such contentious issues as the appropriate time frame of a union election campaign and the applicability of micro-unit bargaining. If approved, the nominees are likely to shift the NLRB toward its official role of impartial arbiter and away from its current unofficial role of union partisan. Sen. Lamar Alexander, R-Tenn., who will chair the hearings, has vowed to move quickly.

The National Labor Relations Board, established by the National Labor Relations Act of 1935 (NLRA), is a federal agency based in Washington, D.C. with 26 regional offices. Its primary responsibilities are supervising union elections and adjudicating labor-management disputes. The board’s mission, in its own words, is to guarantee “the right of most private-sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in collective bargaining, and to refrain from any of these activities. It acts to prevent and remedy unfair labor practices committed by private-sector employers and unions.” This sounds even-handed. In practice, however, things don’t always go according to script.

During the eight years of the Obama administration, the National Labor Relations Board became an advocate of union interests all but in name. A study published last December by the Washington, D.C.-based Coalition for a Democratic Workplace estimated that the NLRB during that time overturned more than 4,500 years of cumulative substantive precedent. Another study, released several weeks later by the U.S. Chamber of Commerce’s Workforce Freedom Initiative, described many of the key cases. The report, titled, “Restoring Common Sense to Labor Law: Ten Policies to Fix at the National Labor Relations Board,” explained how the board, deceptively interpreting NLRA statutes, was abandoning any pretense of balancing the interests of management and labor.

There were two principal reasons for this shift. First, for decades there has been an informal rule in Washington that the board must contain three members of the political party in power and two members of the party out of power – members serve staggered five-year terms. By definition, the arrival of the Obama administration in 2009 meant that the then-short-handed board, once back at full strength, would consist of three Democrats and two Republicans. As Democratic members favor unions and often have served as union lawyers, unions gained the advantage. Second, the Democrats who were named to the board tended to be more ideological than Democrats during prior administrations. Craig Becker, who served 21 months on the board and had been an associate counsel for the Service Employees International Union and the AFL-CIO, for example, previously had expressed the view that an employer should not have the right to challenge union behavior, however coercive, during an organizing drive. He’s now AFL-CIO general counsel.

The coming of the Trump era means the National Labor Relations Board, once at full strength, will have a 3-to-2 Republican majority. And as the NLRB currently operates with only three members – two Democrats (Mark Gaston Pearce and Lauren McFerran) and one Republican (Chairman Philip Miscimarra) – both its open seats would go to Republicans. Last month, President Trump announced his choices: Marvin Kaplan and William Emanuel. Kaplan, nominated on June 20, is chief counsel of the Occupational Safety and Health Review Commission, an independent agency that hears appeals of citations and penalties by the Occupational Safety and Health Administration (OSHA). He previously had been a Republican staffer for the House Oversight and Government Reform Committee and House Education and the Workforce Committee. Emanuel, nominated on June 27, is a shareholder partner in the Los Angeles office of the San Francisco-based employer law firm of Littler Mendelson. He has extensive experience representing clients at NLRB hearings.

While Senate approval shouldn’t be assumed, the prospects look good for each nominee, especially with 52 senators in the Republican column. Lamar Alexander, R-Tenn., who chairs the Senate Committee on Health, Education, Labor, and Pensions, made this statement following the Kaplan nomination: “Marvin Kaplan has the qualifications to be an effective member of the National Labor Relations Board.” If he and Emanuel are approved, the full five-member board will have to deal with several recurring issues on which unions recently have prevailed, and with questionable justification. Here are the most pressing ones.

Joint employer status. The National Labor Relations Board in August 2015 dramatically expanded the basis for forcing an employer to bargain alongside a subsidiary or contractor company in its ruling in Browning-Ferris Industries of California, Inc. Up until that point, the board had adhered to a “direct and immediate control” test for determining joint-employer status. The new decision broadened this standard to include cases of “indirect” and “potential” control from the top. The fast food industry, where franchisees are the ones who typically hire, promote, and set wages, is especially likely to be affected. An ongoing case involving the McDonald’s chain soon will hit the board docket. NLRB General Counsel Richard Griffin, formerly a union lawyer, in December 2014 had authorized six regional directors to force the restaurant chain, along with several franchisees, to assume liability for alleged unlawful interference with certain employees who had participated in nationwide protests. Last October, Administrative Law Judge Lauren Esposito approved an agreement between McDonald’s and Griffin’s office to sever certain active cases in New York and Philadelphia from dozens of other unfair labor practice cases, and in turn, the NLRB would rule directly on the former cases. Then, in November, following Esposito’s ruling, the NLRB ruled 2-1 that McDonald’s must turn over information subpoenaed by Griffin’s office.

Micro-Unionism. Labor unions, when perceiving themselves as lacking support to win a representation election at a given worksite, increasingly are organizing a relatively small fraction of workers there. The NLRB’s August 2011 decision in Specialty Healthcare provided a green light for this trend, known as “micro” unionism. The ruling has created the basis for collective bargaining units at such employers as Bergdorf Goodman, Macy’s, T-Mobile, and Volkswagen. Micro-bargaining might seem like a benign term, but in practice, there is very little benign about it. It undermines the integrity of collective bargaining, inhibits employee mobility within an enterprise, and makes it easier to coerce unwilling employees to join a union even if overall support at the workplace is weak. Sen. Johnny Isakson, R-Ga., and Rep. Francis Rooney, R-Fla., in late May introduced a bill, the Representation Fairness Restoration Act (S. 1217, H.R. 2629), to end this practice. If Congress doesn’t pass the legislation by the end of next year, the NLRB almost certainly will (and should) reconsider Specialty Healthcare.

Employee Handbooks. It is the prerogative of employers to distribute handbooks to new employees explaining workplace rules so long as the rules do not interfere with the right of employees to engage in “concerted activity” for “mutual aid or protection,” as defined by NLRA Section 7. NLRB General Counsel Griffin during the Obama era interpreted this right as a license to sue employers for unfair labor practices based on completely innocuous and commonsense handbook clauses. The NLRB’s 2004 ruling in Lutheran Heritage Village was the catalyst for this legal abuse. Yes, the ruling predated the Obama administration, but NLRB General Counsel Griffin has acted upon it with excessive zeal. If Kaplan and Emanuel are approved, the board might well review a case and interpret Section 7less recklessly.

Ambush Elections. In February 2014, the National Labor Relations Board reissued a regulation that would reduce the allowable time frame for an employer to express opposition to union representation during an election campaign from 42 days to as few as 10 days. This “quickie” or “ambush” election rule, which took effect in April 2015, has played greatly to the advantage of unions. Employers, and dissenting employees, now have less time than ever to explain their side during NLRB oversight. This rule especially adversely affects small businesses, which typically cannot afford to hire a full-time labor issues counsel. Since the rule was promulgated, the average period for filing a petition and holding an election has fallen from 33 to 23 days.

One cannot overestimate the role of the NLRB general counsel in all this. With a set four-year term, he has tremendous leverage in defining the issues that the board reviews. He also has the authority to target employers for subpoenas and lawsuits. Current General Counsel Richard Griffin, a board member from January 2012-August 2013 before assuming his current position in November 2013, for years, had been the house lawyer for the International Union of Operating Engineers. He is a union man. Whatever he says about a “level playing field” in workplace relations as an ideal, he will not operate that way in practice. Unfortunately, his zeal often has strayed into outright advocacy. Trump supporters might be buoyed by the fact that his current term expires in November. However, in light of a U.S. Supreme Court ruling this March regarding Griffin’s predecessor, Acting General Counsel Lafe Solomon, President Trump might not have the authority to replace him as soon as possible.

Everyone who has been in Washington for more than a couple of years knows to treat the term “nonpartisan” with a nudge and a wink. Everything in Washington is partisan; it’s a question of how cloaked the partisanship is. The National Labor Relations Board is no exception. Its members bring their sympathies, whether tilted toward employers or unions, to the table. The customary 3-2 majority favoring the party in the White House exists precisely so that neither the “union” nor the “management” faction feels grossly outnumbered. That said, the board, whatever its prevailing view, must adhere to NLRA statutes. President Obama’s appointees to the board proved themselves to be partisan toward unions in ways that aggressively exceeded congressional intent. President Trump’s two nominees to the NLRB, Marvin Kaplan and Emanuel Kaplan, by contrast, seem more interested in interpreting law than making it. Each is highly capable and has a firm grasp of labor law and policy. If they curtail some of the recent excesses of the board, American workers as a whole would benefit.