This post was originally written by Michael D. Yim and posted on Kelley Drye’s Labor Days Blog.
While President Donald Trump is not known for a deliberate approach, the long-anticipated shifts in labor law and policy is starting to take shape in an efficient and measured form. The National Labor Relations Board (“NLRB” or the “Board”) closed out 2017 with several key decisions overturning significant pro-unions policies. These decisions came on the heels of newly minted NLRB General Counsel Peter Robb’s “Mandatory Submissions to Advice” Memo (the “Memo”) directing regional offices to defer to the General Counsel on certain hot-button labor enforcement actions – a clear signal that many more Obama-era policies will be challenged and likely reversed.
It took little time for both the NLRB and the NLRB’s GC under the Trump administration to get started – contrasting the difficulties the Obama Administration faced in confirming appointees to the NLRB. But, the Trump administration’s unusual patience in ensuring that its pieces were in place has paid off. Now that the ball is rolling, we can expect to continue to take forceful and efficient action in the administration’s second year.
Let’s take a look at what to expect for 2018:
John Ring – The Next (Likely) NLRB Tiebreaker
Former NRLB Chairman Philip Miscimarra’s term ended on December 16, 2017 with a bang. With a full majority of Republican NLRB appointees, Chairman Miscimarra, on his last days, pushed through profound reversals of various Board policies (discussed below) that haunted the business community. Promptly replacing Miscimarra to hold a majority will be critical to implementing changes to federal labor law and policy. On January 12, 2018, management attorney John Ring was officially nominated to replace Miscimarra. A Senate Committee hearing and vote is expected to occur on February 14, 2018.
Once cleared through Committee, a final Senate vote is likely to follow within weeks to allow Ring to pick up where Miscimarra left off. Based on recent events, many expect that most Obama-era NLRB decisions will be reversed by the end of 2018. Further, the NLRB will be expected to vote on eliminating the “quickie election” rule, which significantly limited the time employers had to defend against union election campaigns. The next Obama appointed Board member’s term will expire in August 2018, positioning a 4-1 Republican-appointed majority before any Senate elections. At that point, the question will be whether the NLRB will look to set bold new policy or be content with reversing Obama-era policies to traditional standards.
Peter Robb’s Enforcement Regime in Full Swing
On December 1, 2017, then-newly confirmed NLRB General Counsel Peter Robb issued the Memo which identified over a dozen recent NLRB decisions as targets for such policy scrutiny, as well as rescinded many other internal enforcement policy memos. Within weeks of issuance, three major Obama-era NLRB decisions were reversed. The Memo initially appeared to be an aspirational wish list of sorts. Now, it can be viewed as the playbook for the imminent unwinding of Obama-era policies.
Robb’s vision, however, does not appear limited to policy challenges on the highest levels. Recent news reports revealed that Robb is also looking to shake-up the grass-roots organizational structure of the NLRB’s enforcement units by adding new layers of management to oversee each regional office. The directors of the regional offices have been viewed (fairly or not) as hostile to business. Regional directors wielded substantial discretionary power at the grassroots level to implement or enforce policy. Under the rumored restructuring, regional directors will lose such discretion to issue complaints and dismiss unfair labor practice charges, or how to manage union representation cases. Those determinations would be made by those closer to the General Counsel’s office than on the local level.
If an actual proposal for restructuring is announced, it will likely require public “notice and comment,” as well as approval from the NLRB members. If approved, this restructuring will certainly expedite implementation of any new labor policies or administrative priorities at the grassroots levels. Even if no proposal is made, Peter Robb’s message to enforcement staff is clear – implementation of Robb’s agenda and new NLRB decisions should be swift. We can expect most, if not all, of the subject areas in the Memo to be addressed and reversed by the end of 2018. If restructuring occurs sooner rather than later, implementing new Board law on the ground level will be instantaneous. Continue Reading