Hunton Employment & Labor Perspectives

We have reported on several Board decisions issued by a new Republican majority in the final days of 2017, but questions remain as to what issues the Board will address next to scale back on Obama-era precedent.  In recent weeks, Republican Board Members have provided some hints in a pair of footnotes in two unpublished decisions.

In the first unpublished decision, a footnote provides that Chairman Kaplan “would consider revisiting the Board’s blocking charge policy in a future appropriate case” and that Member Emanuel similarly “believes that the [blocking charge] policy should be changed.”  Under the current policy, established by the 2014 amended election rules, an election may be paused  if a party (typically the union) files an unfair labor practice charge that alleges specific actions preclude or interfere with a fair election.  The policy is generally viewed as favorable to unions, as blocking charges can be filed strategically to halt elections in which labor organizers believe they are lacking support.  This stated desire for change from Members Kaplan and Emanuel signals a potential return to the middle where unproven allegations in unfair labor practice charges will not suffice to delay an union election.

In the second unpublished decision, a footnote provides that both Members Kaplan and Emanuel “believe that, to the extent not already permitted under Board precedent, the legality of confidential severance agreements for former employees should be reconsidered.”  Current Board law established under the previous administration strongly disfavors broad confidentiality provisions in various severance or settlement agreements based on the notion that such restrictions prevent employees from discussing terms and conditions of employment in violation of the National Labor Relations Act.  This footnote may similarly indicate that a shift towards allowing employers to bind employees to confidentiality provisions without being under a heightened standard to narrowly tailor is likely afoot.

Although unpublished Board decisions are not binding precedent, except with respect to the parties in the specific case, the content within such decisions may offer strong clues regarding the direction the newly-constituted Board may take.  Indeed, upon coupling the footnote language from the two Republican Board Members above with the Trump Administration’s recent nomination of John Ring to fill the Board vacancy left by Philip Miscimarra, employers have reason to keep issues related to confidentiality provision scope and blocking charges on their radars.