Republican Majority National Labor Relations Board (NLRB):

In the fall of 2017, two new Republican members were appointed to the NLRB, giving Republicans a majority on the Board for the first time since 2008.

As expected, the more employer-friendly Republican majority Board issued a number of significant decisions late last year that overruled earlier more employee-friendly decisions of the Democratic majority Board during the Obama administration.

Under the prior Democratic majority Board decisions, it was, among other things:

• Easier for unions to organize smaller groups of employees or “Micro-units”;
• Less likely past practices established by management would continue beyond the expiration of a collective bargaining agreement without bargaining over those past practices with the union; and
• More likely work rules in company policies or employee handbooks were found to be invalid given they could reasonably be construed to violate employees’ right to protected concerted activity.

Under the recent Republican majority Board decisions, it will be more difficult for unions to organize Micro-units and past practices established by management will continue beyond the expiration of a collective bargaining agreement without having to bargaining with the union.

Additionally, work rules will be evaluated based on a balancing of the employer’s legitimate business interest for having the work rule and the impact the work rule has on employees’ right to protected concerted activity, which should result in most work rules be found valid.

In December, a Republican Board member’s term expired leaving the Board with an equal number of Republican and Democratic Board members. Later this year, another Republican Board member is expected to be confirmed and we anticipate more employee-friendly decisions and initiative from the Democratic majority Board being overruled, including:

• Expanding union and employee access to employer and non-employer property;
• Permitting employees to use an employer’s email systems for union purposes;
• Restricting a finding of impasse in labor negotiations; and
• Restricting employers from hiring permanent replacements during strikes.

Trump Appointed General Counsel:

Late last year, Trump also selected a new General Counsel, replacing the Democratic incumbent. The General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.

The new General Counsel has ordered Regional field office staff to seek advice on cases involving Obama board decisions, further signaling that those decisions are no longer good law.

The General Counsel has also abandoned many of the employee-friendly initiatives that the previous General Counsel was pursuing; including:

• Limiting an employer’s right to require confidentiality during investigations;
• Heightened scrutiny on employer policies and work rules;
• Requiring employers to disclose witness statements to the union;
• Expanding union and employee access to employer and non-employer property; and
• Seeking to expand permission for employees to use an employer’s email systems for union purposes to other electronic communications (e.g., Internet, Instant Messaging).

UEA will provide additional information as new Board significant decisions and developments emerge from the NLRB and General Counsel.