RESTORING COMMON SENSE TO THE NLRB
The National Labor Relations Board (NLRB or Board) engaged in massive regulatory overreach during the Obama administration. Rather than acting as an impartial referee, the Board aggressively carried out a one-sided agenda aimed at growing labor unions at any cost.
Fortunately, the NLRB has new members and a new General Counsel, who have already begun restoring the appropriate balance to labor law. For example, the new NLRB:
- Overturned the Browning-Ferris decision, which massively, and improperly, expanded the number of businesses that could be deemed “joint employers.”
- Overturned the Specialty Healthcare decision that allowed unions to form “micro-units” that made no sense and upended collective bargaining.
- Revised the Lutheran Heritage standard for reviewing employee handbook policies, which had allowed the Obama-era Board to penalize employers all over the country for maintaining common-sense policies like requiring courtesy in the workplace.
- Issued a new General Counsel memo requiring many controversial Obama-era regulatory policies to get special review.
However, there is still more work to be done to ensure that labor law works for both employees and employers. This includes:
- Agency Staffing: Former NLRB Chairman Phil Miscimarra’s term expired in December 2017, and the administration named Marvin Kaplan as Board Chairman. However, this leaves the Board with a 2-2 split along party lines. Until the U.S. Senate confirms a replacement for the fifth seat on the Board, the agency will be deadlocked on many issues.
- Arbitration Agreements: In D.R. Horton and Murphy Oil, the Obama-era NLRB tried to prohibit the use of employment arbitration agreements. These agreements speed up the resolution of workplace disputes and reduce the need for expensive class action litigation. However, the Board claimed that arbitration agreements violate Section 7 rights to engage in concerted activity. The U.S. Supreme Court is expected to issue a ruling in these cases in the near future. Nonetheless, the Board should expressly reverse D.R. Horton and Murphy Oil.
- Union “Ambush” Elections: In December 2017, the newly-constituted NLRB asked the public if it should keep, modify, or get rid of its “ambush” elections rule. This rule requires employers to turn over to union organizers personal information about their workers, such as phone numbers, e-mail accounts and home addresses. It also strips employers of their due process rights and makes it harder to respond to a union organizing campaign. By shortening the time period before an election, it also may prevent employees from getting fully informed about a critical workplace decision like voting for or against a union. Rulemaking should ensure that the elections process works fairly.
- Congressional Activity: The positive changes listed above will last only so long as a balanced Board majority lasts. That’s why Congress needs to pass legislation like the Save Local Business Act that would enshrine in law a sensible joint employer standard. Congress should also pass the Workplace Democracy and Fairness Act, to lock in place fair union election procedures.
The NLRB has finally started to turn the corner. Now the administration and Congress need to ensure that this progress continues.
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