ILMA Compoundings November 2017 - 34

COUNSEL COMPOUND

What to Expect From a Republican
National Labor Relations Board
By Jeff Leiter

I

LMA has written a lot of news articles about how the Obama administration used the National Labor
Relations Board (NLRB) to create
and enforce pro-labor policies. The
Trump administration has now begun
to reshape the NLRB with Republican appointees who are presumably
more sympathetic to business interests
and what was once the longstanding balance by the agency between
employer-employee practices. However, employers should be prepared to
exercise patience, as there are a number
of hurdles to restoring traditional
union election practices, reinstating the
long-term view of the joint employer
relationship, and allowing employers to
craft effective workplace rules.
Keep in mind that although the two
new members of the NLRB have created a Republican majority, the term of
the pre-existing Republican appointee
expires in December. While the president can nominate another Republican,
the NLRB will be evenly divided until
the Senate confirms the replacement.
What this means is there will not likely
be any major changes to NLRB policies
until that last Republican member is on
board in 2018.
Under the Administrative Procedures Act, NLRB must follow the same
process to repeal and replace a regulation
as was used to promulgate it. The agency
must give formal notice of the proposed
action through the Federal Register - it
must allow time for the public, including labor unions, to comment on the
proposed change, and after the agency
considers the comments, it can move
forward to finalize the change.
Business groups are hopeful that
the "new" NLRB will reverse the April
2015 "ambush election" rules that were
intended by the Obama administration
to tilt organizing elections in favor of the

34

NOVEMBER 2017

| COMPOUNDINGS | ILMA.ORG

unions. However, at best, such changes
will be time-consuming. On the "front
end," it took NLRB nearly five years to
promulgate the regulations and then
fight court challenges that the agency
did not have the member quorum necessary to adopt the rules. Assuming that
the NLRB repeals the ambush election
regulations, it is probable that the agency
will be sued in federal court - triggering the need for the NLRB to show that
its decision was based on a reasoned
review of the administrative record.
NLRB routinely affects labor policy
through case decisions that create
non-regulatory changes, such as with
employee handbooks or workers' use
of social media. Reversing these case
decisions and policy changes will take
longer than hoped for by employers. As
an initial matter, it will take a willing
employer to invest significant legal fees
in a multi-step challenge to the existing
NLRB precedent. The employer must
then defend a complaint before an
administrative law judge (ALJ), who is
bound by existing NLRB precedent.
Assuming the ALJ issues an adverse
decision, the employer then can appeal
the decision to the NLRB. Besides the
cost, it is likely an 18- to 36-month
process to secure a final decision.
Even if business interests are able to
get favorable action from the NLRB,
judicial review can further slow the
policy direction change from the
agency. As I hinted at earlier, the courts
will look at NLRB's policy changes
through the agency providing a cogent
explanation linking the overturning of
its precedent to a rational evaluation of
pertinent evidence.
While often straightforward, the
NLRB sometimes fails to clear this
judicial hurdle. For example, an appeals
court struck down a 2-year-old NLRB
decision earlier this year to extend its

jurisdiction over airline contractors that
were historically excluded from its purview. The court found that the NLRB
had overruled its own precedents with
no explanation.
Also, keep in mind that the NLRB
typically views itself as bound only
by U.S. Supreme Court decisions,
so regional NLRB personnel often
ignore lower court criticism or adverse
decisions.
So, what should ILMA members
take away from all of this? As employers, they should not expect to see
significant changes to existing labor law
and policies from the NLRB until at
least the latter part of 2018. Further,
even with a Republican majority of
pro-business members, it could take
several years to see a number of these
changes become "final."
As a result, I have advised clients to
continue to conduct their labor activities
with the assumption that the existing,
unfavorable Obama-era labor policies
will remain in place for the foreseeable
future. For example, we assist a number
of clients with updating their employee
handbooks, and we consider language
for these employee handbooks, bearing
in mind decisions made by the NLRB
under former President Barack Obama.
Further, because most of those clients
are not interested in being a "test case" for
the NLRB, we usually counsel that prudence dictates following the status quo
until the new NLRB takes final action
- especially if the employee misconduct
arguably involves the acceptability as
"protected concerted activity" under the
National Labor Relations Act.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.


http://www.ILMA.ORG

Table of Contents for the Digital Edition of ILMA Compoundings November 2017

LETTER FROM THE CEO
INSIDE ILMA
Company Callout
WHAT’S COMING UP
In the Know
INDUSTRY RUNDOWN
International Insight
Market Report
SHIFTING GEARS – INNOVATING THE FUTURE
NORTH AMERICAN SPECIFICATION UPDATE
DIGITAL MARKETING IN MANUFACTURING
BUSINESS HUB
COUNSEL COMPOUND
WASHINGTON LANDSCAPE
IN NETWORK
Member Connections
ILMA Compoundings November 2017 - Cover1
ILMA Compoundings November 2017 - Cover2
ILMA Compoundings November 2017 - 1
ILMA Compoundings November 2017 - 2
ILMA Compoundings November 2017 - LETTER FROM THE CEO
ILMA Compoundings November 2017 - INSIDE ILMA
ILMA Compoundings November 2017 - 5
ILMA Compoundings November 2017 - Company Callout
ILMA Compoundings November 2017 - 7
ILMA Compoundings November 2017 - WHAT’S COMING UP
ILMA Compoundings November 2017 - 9
ILMA Compoundings November 2017 - INDUSTRY RUNDOWN
ILMA Compoundings November 2017 - 11
ILMA Compoundings November 2017 - International Insight
ILMA Compoundings November 2017 - 13
ILMA Compoundings November 2017 - Market Report
ILMA Compoundings November 2017 - 15
ILMA Compoundings November 2017 - SHIFTING GEARS – INNOVATING THE FUTURE
ILMA Compoundings November 2017 - 17
ILMA Compoundings November 2017 - 18
ILMA Compoundings November 2017 - 19
ILMA Compoundings November 2017 - 20
ILMA Compoundings November 2017 - 21
ILMA Compoundings November 2017 - 22
ILMA Compoundings November 2017 - 23
ILMA Compoundings November 2017 - NORTH AMERICAN SPECIFICATION UPDATE
ILMA Compoundings November 2017 - 25
ILMA Compoundings November 2017 - 26
ILMA Compoundings November 2017 - 27
ILMA Compoundings November 2017 - DIGITAL MARKETING IN MANUFACTURING
ILMA Compoundings November 2017 - 29
ILMA Compoundings November 2017 - 30
ILMA Compoundings November 2017 - 31
ILMA Compoundings November 2017 - BUSINESS HUB
ILMA Compoundings November 2017 - 33
ILMA Compoundings November 2017 - COUNSEL COMPOUND
ILMA Compoundings November 2017 - WASHINGTON LANDSCAPE
ILMA Compoundings November 2017 - Member Connections
ILMA Compoundings November 2017 - 37
ILMA Compoundings November 2017 - 38
ILMA Compoundings November 2017 - 39
ILMA Compoundings November 2017 - 40
ILMA Compoundings November 2017 - Cover3
ILMA Compoundings November 2017 - Cover4
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