The NLRB was intended to be an unbiased arbiter of labor disputes, ensuring workers were protected from unfair labor practices. As we have seen in previous blogs, in the past several years, the NLRB has been unapologetically pro-union. President Trump’s appointment of Philip A. Miscimarra, a tenured board member who has been a tireless advocate for pro-employer and employee policies that protect workplace freedom,  to serve as Acting Chair of the Board could bring meaningful change in how the Board interprets and applies the Act. As two vacant seats are filled by likely two pro-business board members, a new majority is able to act. Additionally, current General Counsel Richard F. Griffin, Jr.’s term runs through November 4, 2017.

Changes are anticipated as Unfair Labor Practice issues get before the Board. It is likely that any new Members appointed by the President will almost certainly share Acting Chair Miscimarra’s views on such issues as use of employer email systems (employers should be able to control the uses of their own property, provided they do not discriminate against NLRA- protected communications) and the review and enforcement of workplace rules, handbooks and the like.  A new balancing test such as that proposed in the Beaumont Hospital (William Beaumont Hospital, 363 NLRB No. 162) dissent is quite foreseeable. In that case, Miscimarra urged a balancing test not only focusing on employee rights, but on employers legitimate justifications for a particular policy or rule.

With the Amended Election Rule (the rule to streamline the process and reduce the time between the filing of a representation petition and the vote down to 21 days from the typical 40-45 days), changes may be a bit more problematic. The Rule itself was the result of formal rule making and changes will be subject to the same processes, although there is certainly room for the Board to make changes in how it administers and processes cases even under this Rule, before any change to the Rule itself would become effective. The Acting Chair’s comments concerning the right of employers and other parties to due process, including the right to develop a complete factual record on disputed, material issues is something that can be changed through the administration and application of the Rule even without formal change.

The takeway for employers? Stay tuned for new developments!