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Counseling dismisses a very changed NLRB: Experts



Employers should stick to a significant return of the National Labor Relations Board to the Obama administration's policies, as evidenced by recent concerns at the agency's General Council office, experts say.

It will be the end of the year before the NLRB has a Democratic majority, as the Republican Commissioners' terms expire, but by introducing an employment adviser now, as expected, the Biden administration is preparing for some major policy changes on issues such as common employers and manual policy, they say.

At the end of last month, President Joe Biden fired the NLRB's General Council, Peter B. Robb, and then Acting General Councilor Alice B. Stock, after refusing to resign. Mr. Rob's mandate was scheduled to expire in November.

Career NLRB employee Peter Sung Ohr was appointed acting general counsel, but some experts believe that President Biden will elect a union lawyer to fill that position.

Observers characterize the dismissals as President Biden's "thanks" for work support.

President Trump and President Obama allowed both sitting NLRB General Councils to end their terms even though they were from the opposite party. Mr. Robb was the first NLRB general councilor since 1

950, under the Truman administration, to be forced out.

Experts say the General Council plays an important role in determining the board's policy and putting a pro-union General Council in place now believe that cases that could lead to a reversal of the Trump administration's policy could be set in motion and be ready to be presented to a democratic government.

President Biden's actions were "quite unexpected," said Daniel B. Pasternak, a partner with Squire Patton Boggs in Phoenix. Members of the working class had worked for such a measure "because of the perception that Robb kind of had the thumbs up on the scale for employers and was not interested in pursuing a balanced agenda," he said.

With a new Secretary General in place, the policy will be revoked "much faster than would otherwise have been the case" if Robb had been allowed to remain in the position, says Nelson D. Carey, a partner with Varies, Sater, Seymour & Pease LLP in Columbus, Ohio.

"Much of what the current board has done will be reversed, and we can expect to go back to a lot of the Obama-era policies," said Todd H. Lebowitz, a partner with Baker & Hostetler LLP in Cleveland. Companies "just need to understand it, expect it and plan for it," he said.

Joshua A. Viau, a partner with Fisher Phillips LP in Atlanta, said he expects a return to an Obama administration campaign that ensured that it did not unite. employees understood that they, like unionized workers, have rights under the National Labor Relations Act.

"Employers without unions must be genuinely concerned about the extension of the protected, coordinated activity doctrine" implemented by the Obama-era NLRB, which mainly protected workers who complained about working conditions, says Mike McGuire, a partner with Shaw Rosenthal LLP in Baltimore.

Experts say that issues that can be reconsidered by a Democratic Majority Commission include:

  • E-mail . Trump NLRB and Caesars Entertainment et al. and the International Union of Painters and Allied Trades, et al. repealed the Obama-era Purple Communications ruling, arguing that banning employees 'e-mail system use does not violate Section 7 of the National Labor Relations Act, which protects employees' coordinated activities regardless of whether they are union members .
  • Joint employers . The Republican-controlled NLRB reintroduced the common employer standard that existed before the Obama administration's decision Browning-Ferris Industries which states that a company only needs to have indirect control over a worker and does not even have to exercise that control to be considered a common employer.
  • Misclassification. In its decision Velox Express the Republican-controlled NLRB withdrew from the era of the Obama administration and said that an employer does not violate the NLRA when it misclassifies its workers as independent entrepreneurs.
  • Manuals . The Republican-controlled NLRB overturned a 2004 decision, claiming that Chicago-based Boeing Co. had legally maintained a rule without a camera in its employee handbook. Mr Robb then issued a memorandum stating that the political ambiguities in the employer's handbook should no longer be interpreted against the employer.


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