NLRB ANNOUNCES AGGRESSIVE AGENDA POSITIVE CHANGE

The National Labor Relations Board (NLRB), through its Republican majority and aggressive General Counsel, Peter Robb, has publicized various positive changes, many of which add clarity or more even-handed decision-making to the NLRB.  On May 22, 2019, the announcement indicates that the Board will consider rule-making in the following areas: 

• A joint-employer standard.
• The Board's current representation - case procedures (the so-called "quickie" election rule).
• The Board's current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
• The standard for determining whether students who perform services at private colleges are employees.
• Standards for access to an employer's private property.

It should be noted that rule-making is rare at the NLRB, but it offers certain advantages including the fact that rules once established are harder to reverse in a future administration.  The quickie election rule during the Obama Administration is an example of recent rule-making.

It is not just in rule-making that the NLRB is having a major impact.  The NLRB General Counsel, Peter Robb, has the ultimate authority of the position to be taken by the Board in litigation and whether to issue a complaint that would start the litigation process over an issue.  The Obama-era NLRB overturned some 92 NLRB precedents, and the current General Counsel is anxious to reverse many of those rulings as well as set forth new favorable precedents.  Some of the areas the General Counsel would like to address and change Obama-era precedent include changing union's power during contract negotiations, assessing employer arbitration agreements, the NLRB's standards for deferring to arbitration, issues pertaining to the discussion of workplace investigations, and those relating to unions' displaying the inflatable cartoon balloon known as "Scabby the Rat" at labor demonstrations.   The General Counsel's office has advocated for changes to Board law to remove employers' obligation to deduct dues after a collective bargaining agreement expires; allow workers to revoke their dues authorizations when there is no contract in effect; and permit employers to stop making pension contributions when their collective bargaining agreement expires and pension fund documents indicate that payment should stop.  Important new labor precedents have already been set overturning Obama-era rulings on workplace rules, employment classification, and micro-units.