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Pro-employer bent seen with NLRB’s new GOP majority

Pro-employer bent seen with NLRB’s new GOP majority

The Senate’s approval of John F. Ring as the new chair of the National Labor Relations Board this month restores a Republican majority to the board and means employers can expect more pro-employer rulings and the reversal of policies many had considered onerous and unfair, experts say.

NLRB rulings involving joint employment, employment handbooks and social media issues are among those considered likely to be reversed with the assumption of Mr. Ring, a former Morgan Lewis Bockius L.L.P. partner in Washington who specialized in employment law, to the chairman’s spot on the five-member board, which gives it a 3-2 Republican majority.

Experts say that during the Obama administration, the Democrat-controlled board had overturned many years of precedents in its rulings, which have been criticized by business advocates as being too pro-employee.

“I think all of the Obama decisions are going to be unwrapped, and I think that’s good news for employers,” said Jonathan J. Spitz, a principal with Jackson Lewis P.C. in Atlanta.

The NLRB had a 3-2 Republican majority for a period last year when two Democrats on the board were replaced by Republicans William J. Emanuel and Marvin E. Kaplan, and it issued some pro-business rulings during that time.

But that ended when former chairman Philip A. Miscimarra’s term expired in December, leaving Republican and Democrat members evenly matched.

With a restored Republican majority, “we’re going to see some significant changes in what the Obama administration did,” said James F. Hendricks Jr., a partner with SmithAmundsen P.C. in Chicago.

“There was a lot that happened with the Obama administration that really went beyond” the National Labor Relations Act’s normal reach, “and under Trump, it’s all been about deregulation,” said Sara Jodka, of counsel with Dickinson Wright L.L.P. in Columbus, Ohio.

“If there isn’t a pro-employer bent, then at least it will be neutral” under the board’s current configuration, and employers will have a fairer shake in front of this board, said Daniel B. Pasternak, a partner with Squire Patton Boggs in Phoenix.

A memo sent by the NLRB’s new general counsel, Peter B. Robb, to regional offices in December has already signaled there will be some significant pro-employer changes from the agency.

One of the issues expected to be considered is joint employment. In 2015, a Democrat-controlled NLRB overturned a standard that had been in place since 1984 and held in its Browning-Ferris ruling that a company need only have indirect control of a worker and not even exercise that control to be considered a joint employer. 

The struggle is over the idea of how a franchiser “could be liable for the act of a franchisee, especially when there’s no basis of control except for the use of their name and their products,” said Michael J. Kaufman, co-managing partner at Kaufman, Dolowich & Voluck L.L.P. in Woodbury, New York.

In December, during Mr. Miscimarra’s tenure, when its Republican majority was in place, the NLRB overturned the 2015 ruling on a 3-2 vote, in a case involving Muscatine, Iowa-based Hy-Brand Industrial Controls Ltd. and Milan, Illinois-based Brand Construction Co. and returned to the pre-Browning-Ferris standard. 

But after an objection was raised against Mr. Emanuel’s participation in the vote because of a perceived possible conflict of interest, three NLRB board members issued an order vacating the ruling, which in effect restored the Browning-Ferris ruling. Experts say they expect the NLRB to rescind Browning-Ferris at the first opportunity.

Another hot issue involves handbooks. In one such case in December, also during the period with a Republican majority, the NLRB overturned a 2004 decision and held that Chicago-based Boeing Co. had lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video “without a valid business need and an approved camera permit.”

Unlike the Democratic board, which “didn’t take employers’ intent or purpose behind the rule into consideration,” the new board said Boeing “actually does have some valid reasons for prohibiting recording devices,” which was to protect trade secrets, said David J. Pryzbylski, a partner with Barnes & Thornburg L.L.P. in Indianapolis

Joseph Santucci, a partner with Schwartz Hannum P.C. in Andover, Massachusetts, said one of the more significant cases the board is expected to look at is 2014’s Purple Communications Inc. ruling, which allowed workers to use employer email systems for union business. The ruling overturned a 2007 decision that said employees did not have a right under the NLRA to use employer-owned email for organizing purposes, and is “one of the more significant cases still hanging out there from the last go-round,” he said.

In addition, “there was a real effort” by the Obama-era board “to weigh in on confidentiality agreements, confidentiality policies, social media policies and electronic communication policies in an effort to expand the scope and jurisdiction of the NLRB,” said Donald W. Schroeder, a partner with Foley & Lardner L.L.P. in Boston, who also indicated that changes to the Obama-era rulings may be neither instant nor dramatic.

“I don’t think there’s going to be an edict from the general counsel’s office that rescinds” any of the memoranda issued during the Obama administration, but at the same time, “you’ll see less evidence of unfair labor practice charges” going before the agency’s administrative law judges, Mr. Schroeder said.




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