WASHINGTON – With the White House now in the hands of Republicans, the majority on the National Labor Relations Board is also expected to soon change hands. But what impact that could have on the NLRB's proceedings and agenda, at least in the short term, remains to be seen.
President Donald Trump appointed Philip Miscimarra interim chairman of the NLRB. And, while not required by law, historically the partisan makeup of the NLRB’s five-member board also changes to mirror the party in power.
Miscimarra has been noted for his dissenting opinions more than once. But even his appointment as interim chair won’t have that much of an impact for the board as of yet, said Matthew Finkin, a professor at Illinois College of Law and expert on labor and employment law.
That’s mainly because it isn’t the chairman that sets the NLRB’s agenda. The NLRB docket is controlled by the general counsel, Richard Griffin, who was nominated by former President Barack Obama to a four-year term, beginning in November 2013. That means that for the better part of 2017, Griffin, not Miscimarra, will decide which cases to bring before the board, and which issues the board focuses on.
“The chairmanship is not irrelevant, but the chairman doesn’t set the agenda. It’s the cases that are brought to the board by the general counsel that sets its agenda,” Finkin said. “The only way cases get presented to the board is by a complaint filed by the general counsel. He controls the board’s docket. He’s not appointed by the board; the general counsel is appointed by the president, with the advice and consent of the Senate.”
That doesn’t mean that the change in the White House might not have an impact on the activities of the NLRB. Some major issues set to be considered by the U.S. Supreme Court that could dramatically impact workers’ rights and employer contracts. Last September, for instance, the NLRB, in conjunction with the Justice Department, asked the Supreme Court to decide whether employers can require workers arbitrate disputes independently. The NLRB had found such contracts violate the National Labor Relations Act and other laws.
Finkin said the Trump administration could possibly have a significant impact on that case and others, as it could intervene to ask the court to return the matter to the NLRB for further consideration.
“Now there is a possibility that if the new Trump board – if the president quickly appoints a full board – it is possible, I suppose, as a legal matter for (a Republican-controlled NLRB) to say, ‘We want the case back, we want to reconsider,'" Finkin said. "So it is possible that a new board might come in and say, ‘We are requesting the Supreme Court to remand this case back to us, because we want to rethink the doctrine.’”
There’s also a possibility that the Solicitor General under the direction of the Trump administration may essentially switch sides and decide that the office can no longer support the original assertion of the NLRB.
Regardless, Finkin said, the biggest issue at hand for the moment is the issue of arbitration clauses.
“If you ask what would the immediate consequence of a Trump board would be that would be the most dramatic, certainly,” Finkin said.