By Eric Morath
Five months into President Donald Trump's administration, the
federal agency that referees disputes between unions and business
is still controlled by Democrats, complicating the White House's
effort to roll back government oversight of the labor market.
National Labor Relations Board decisions during President Barack
Obama's tenure resulted in some big victories for labor, including
an easier path for employees at franchise businesses and
contractors to join unions. The board's position in the months
ahead will shape how far these efforts go, with big implications
for chains like McDonald's and others.
With two of the board's five seats vacant since August 2016, Mr.
Trump has an opportunity to flip the board controlled by two
Democrats into Republicans' favor. The president may make
nominations as soon as this week as part of a focus on labor
policy, but Senate confirmation might not occur until well into the
fall.
Mr. Trump has elevated the sole Republican, Philip Miscimarra,
to chairman. That move slowed issuance of agency decisions, since
he can control which cases are decided but lacks the votes to win
rulings.
The board "functions best with a full complement of five Board
members, and I hope that our two existing vacancies will be filled
as soon as possible," Mr. Miscimarra said in a statement to The
Wall Street Journal. "My primary focus is to facilitate the board's
timely resolution of our cases, and to support the agency
generally. This will be enhanced when we return to having five
confirmed Board members."
The White House is considering William Emanuel, an attorney
representing employers at the Littler Mendelson law firm, and
Marvin Kaplan, counsel at the independent Occupational Safety and
Health Review Commission, according to people familiar with the
vetting process.
Mr. Emanuel has a background similar to the chairman's; both
spent much of their careers at major law firms representing large
companies in employment-law cases. Mr. Kaplan previously was policy
counsel to the House Education and the Workforce Committee.
Mr. Emanuel declined to comment through his firm. Mr. Kaplan
didn't respond to requests for comment. A White House spokesman
said the administration doesn't comment on personnel matters.
Through the first five months of this year, the board has
decided about 40% fewer cases compared with the same period in
2016. This year, it hasn't issued any "notable decisions," the
designation given to cases that are of broad interest to employers
and unions. Last year, 10 such decisions were issued before
June.
"The delays are concerning," said Robert Cresanti, president of
the International Franchise Association trade group. Uncertainty
about how the board could rule in future cases is keeping firms
from expanding and leaving it unclear how much involvement a
franchise can have in its franchisee's employment policies, Mr.
Cresanti said.
Cases decided before the board don't in themselves set
precedent, but that can change if rulings are challenged in federal
court. NLRB decisions also guide businesses and unions on how the
board could rule in future cases.
Filling out the board has been a politically fraught process in
the past. The board had only two members from January 2008 until
March 2010, meaning President Barack Obama didn't have a body
controlled by Democrats until more than a year after he took
office. President George W. Bush didn't see the board turn to
Republicans' favor until January 2002, a year after his
inauguration. President Bill Clinton faced a similar wait for a
return to a Democratic majority.
For each of the three prior administrations, the board was split
for at least a portion of the time.
Business groups such as the franchise association and Chamber of
Commerce say they are anxious to have the board take another at
look organizing rules revised in recent years -- and to find a case
that would overturn a ruling that made it easier for contract
workers and employees of franchises to collectively bargain.
The board in 2015 found that contract workers at a recycling
facility had the right to bargain with the company that owned their
facility, Browning-Ferris Industries, not just the local contractor
that paid them.
Franchise businesses are concerned the case opened the door to
the determination that employees of franchised locations -- like
McDonald's restaurant -- could bargain with the parent brand.
A case involving McDonald's is in the board's pipeline, still
pending before an administrative law judge. Based on the judge's
ruling, that case would likely be elevated to the full board.
The board's general counsel, a Democrat in place until November,
has sway over which cases are allowed to proceed to administrative
judges.
Kristie Arslan, owner of the Popped Republic popcorn shop in
Alexandria, Va., said she decided not to expand her brand through
franchises after learning about the board's joint-employment
ruling.
It could make her legally liable for employees of her
franchisees. She now lobbies on behalf of small businesses against
such policies.
"We've had to take the slow-and-steady approach even though
franchising could help us grow much quicker," she said. "Regulation
is holding back small-business growth."
Some say that businesses are overstating the reach of recent
board decisions.
Craig Becker, general counsel at the AFL-CIO labor federation,
said major rulings during the Obama administration were mostly
about interpreting a 1930's law in the context of the modern work
force.
That included looking at rules around use of employer email
systems and how bargaining applies to a modern workforce that makes
greater use of contract labor. Mr. Becker, a Democrat, served on
the board from 2010 to 2012.
"Attempting to reverse everything that has been done, doesn't
advance the agency's mission," he said. "The board should figure
out how the law is best applied going forward."
(END) Dow Jones Newswires
June 14, 2017 09:14 ET (13:14 GMT)
Copyright (c) 2017 Dow Jones & Company, Inc.
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