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Republican-Led NLRB Likely to Change Obama-Era Policies

For the first time in years the National Labor Relations Board (NLRB), is back under Republican control with the swearing in of William Emanuel on September 26, 2017.  With a Republican majority, we will likely see sweeping change in NLRB decisions and policy over the next few years.  The new majority will be able to reverse many Obama-era rulings and pave the way for more business-friendly NLRB policies.

At the top of the list for the majority Republican NLRB Board will be issues including joint employment, quickie elections, and other rulings that have changed the legal landscape for employers.  Below are some of the more impactful changes we expect to see in the coming years.

Joint Employment

In 2015, a majority Democrat NLRB Board expanded the standard for determining what companies qualify as joint employers that share in unfair labor practice liability.  The decision faced fierce criticism from the business community.  The NLRB will likely reverse this decision and return to traditional standards of joint liability that are less expansive.  Employers that are franchisees or a part of a network of businesses certainly will look forward to this change.

Lutheran Heritage Decision

The 2004 Lutheran Heritage decision predates President Obama, but is still a likely target for the Republican-majority Board.  In that decision the NLRB determined that work rules and employee handbook provisions are unlawful if employees would reasonably construe them to prohibit protected concerted activities under the National Labor Relations Act.  Following that decision, the Board has ruled that many commonplace handbook policies run afoul of the NLRA since they have a chilling effect on employees engaging in protected concerted activity.  In the aftermath of Lutheran Heritage, the NLRB involved itself with many private, non-union employers.  We expect a substantial claw-back from that type of NLRB activism.

Quickie Union Elections

In 2015, the NLRB took a rare step and issued a number of changes to NLRB election procedures that streamlined the process for union election campaigns.  The rule is often referred to as the “ambush election rule,” as it cut short the time for employers to make their case to workers about unionization.  Previously, employers were given significantly more time to wage a campaign to oppose unionization.  We will likely see a return to the previous standard, allotting more time to employers.

“Micro” Bargaining Units

In a related area, the Board is likely to retreat from recent decisions (such as Home Health Care), that permit unions to organize distinct groups of employees, permitting unions to get a foot in the door by selecting the group most interest in unionization.  The likelihood is that the Board will revert to previous standards giving the employer more opportunities to expand a proposed unit, so long as there is a community of interested among the employees.

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