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Counsel firings portend a much-changed NLRB: Experts

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NLRB

Employers should brace themselves for a significant return by the National Labor Relations Board to Obama administration policies, as portended by the recent turmoil in the agency’s general counsel’s office, experts say.

It will be the end of the year before the NLRB has a Democratic majority, as Republican commissioners’ terms expire, but by putting in place a pro-labor general counsel now, as expected, the Biden administration is gearing up for some major policy changes involving issues such as joint employers and handbook policies, they say.

In rapid succession, late last month, President Joe Biden fired the NLRB’s general counsel, Peter B. Robb, and then acting general counsel Alice B. Stock after they refused to resign. Mr. Robb’s term had been scheduled to expire in November.

Career NLRB employee Peter Sung Ohr was named acting general counsel, but some experts believe President Biden will select a pro-union advocate to permanently fill that position.

Observers characterize the terminations as President Biden’s “thank you” for labor support.

President Trump and President Obama both allowed the sitting NLRB general counsels to finish out their terms despite their being from the opposing party. Mr. Robb was the first NLRB general counsel since 1950, during the Truman administration, to be forced out.

Experts say the general counsel plays a significant role in determining the board’s policies, and putting a pro-union general counsel in place now means cases that may result in a reversal of Trump administration policies can be put in the pipeline and be ready to be presented to a Democratic-controlled board.

President Biden’s actions were “pretty unexpected,” said Daniel B. Pasternak, a partner with Squire Patton Boggs in Phoenix. But members of the labor community had been pushing for such action “because of the perception that Mr. Robb kind of had his thumb on the scale for employers, and was not interested in advancing a balanced agenda,” he said.

With a new general counsel in place, policies will be rescinded “much more quickly than would otherwise have been the case” had Mr. Robb been allowed to remain in the position, said Nelson D. Carey, a partner with Varies, Sater, Seymour & Pease LLP in Columbus, Ohio.

“A lot of what the current board has done will be reversed, and we can expect to go back to a lot of the policies from the Obama years,” said Todd H. Lebowitz, a partner with Baker & Hostetler LLP in Cleveland.  Businesses “just need to understand it, expect it and plan for it,” he said.

Joshua A. Viau, a partner with Fisher Phillips LP in Atlanta, said he anticipates a return to an Obama administration campaign that made sure nonunion employees understood that they, as well as unionized workers, have rights under the National Labor Relations Act.

“Nonunion employers certainly have to be concerned regarding the expansion of the protected, concerted activity doctrine” implemented by the Obama-era NLRB, which essentially protected workers who complained about working conditions, said Mike McGuire, a partner with Shaw Rosenthal LLP in Baltimore.

Experts say issues that may be reconsidered by a majority Democratic commission include:

  • E-mail. The Trump NLRB in Caesars Entertainment et al. and International Union of Painters and Allied Trades, et al. overturned the Obama-era Purple Communications ruling and held that prohibiting employees’ email system use does not violate Section 7 of the National Labor Relations Act, which protects employees’ concerted activity regardless of whether they are union members.
  • Joint employers. The Republican-controlled NLRB reinstated the joint-employer standard that was in place prior to the Obama administration’s 2015 Browning-Ferris Industries ruling, which said a company only needs to have indirect control of a worker, and does not have to even exercise that control, to be considered a joint employer.
  • Misclassification. In its 2019 Velox Express ruling, the Republican-controlled NLRB retreated from the Obama Administration-era policy and said an employer does not violate the NLRA when it misclassifies its workers as independent contractors.
  • Handbooks. The Republican-controlled NLRB overturned a 2004 decision and held that Chicago-based Boeing Co. had lawfully maintained a no-camera rule in its employee handbook. Mr. Robb subsequently issued a memo that said employer handbook policy ambiguities should no longer be interpreted against the employer. On Monday, in a memo addressed to regional directors and others, among other measures, Mr. Ohr rescinded that memo, stating “it is no longer necessary, given the number of cases interpreting Boeing that have since issued.”

 

 

 

 

 

 

 

 

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