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Pro-Business Majority Now in Control at NLRB

Good news for business! On April 11, 2018, the US Senate confirmed Morgan Lewis & Bockius attorney John Ring to fill the National Labor Relations Board's only remaining vacancy. With this confirmation, the NLRB will be at full strength with a 3-2 pro-business majority. This clears the way for the Trump administration appointees to resume their pro-business agenda.

The new pro-business NLRB majority has a long list of Obama-era pro-labor policies to overturn, including the pro-labor ruling letting workers use company e-mail systems for union business and a series of pro-labor decisions limiting the rules employers can impose on their employees. The latter amounted to an attack on employer policies and procedures as contained in employee handbooks.

Equally as important has been the arrival on the scene of the new General Counsel, Peter Robb. Robb who became General Counsel in November, 2017 has been under fire from NLRB employee unions and the NLRB's national staff over Robb's proposal to cut costs by demoting the NLRB's regional directors and subjecting them to new layers of oversight.

Employers can happily look for a string of pro-business decisions by the full strength NLRB. And, the new General Counsel can be expected to help tilt the playing field back at least to level.

A more subtle change will also be seen. As union organizing has dropped dramatically, the NLRB has been playing a game of survival. The NLRB didn't have enough to do. So, they started taking cases where no union was in the picture at all!

We began seeing a wave of protected concerted activity complaints where logic was strained to find violations and where there was no union activity involved. We were hit with fly-specking of handbooks, policies, and computer policies to find NLRA violations using questionable theories.

Employers began facing costly litigation over terminations where the protected concerted activity was pretty difficult to spot and a real stretch. There was no union activity (which has been the usual requirement). All this is about to change with an expected series of pro-business decisions. Look for NLRB pro-business action in these areas:

· Joint employer

· Ambush elections

· Ability to terminate employees for outrageous and obscene Facebook posts

· Rescind difficult "status quo" rules in first contract negotiations

· Reverse check-off decision holding that such clauses survive contract expiration.

Other pro-union decisions had been reversed before the December, 2017 retirement of the Board Chairman, which then created a 2-2 split. This is all changed now and it is good news for employers. For those of you who are really interested in this stuff, click here for the biographical sketches of the five Board members and the General Counsel.

Read them, and it is easy to spot who is pro-business and who is pro-labor.

Questions? Contact Attorney Richard H. Wessels at [email protected] or at (630) 377-1554

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