Labor board burns through Obama-era rules

The National Labor Relations Board (NLRB) is delivering a flurry of wins to businesses now that it has a Republican majority under President Trump.

The independent board tasked with enforcing fair labor practices and collective bargaining rights overruled three Obama-era rules last week in a series of 3-2 rulings.

Employers had fought for years against the rules, including a controversial NLRB decision that changed the definition of a joint-employer.

{mosads}The joint-employer rule put companies potentially on the hook for labor law violations committed by their subcontractors if they have indirect or potential control over the terms and condition of employment. Companies that operate on a franchise model vigorously opposed the change.

On Thursday, the labor board said it’s returning to the standard that requires companies have “direct” and “immediate control” over labor conditions before they are liable for violations.

The board also created a stricter test for determining when policies in employee handbooks will violate the rights of workers to bargain collectively. It also voted to prevent employees from being able to form so-called micro-unions.

Marc Freedman, executive director of labor law policy at the U.S. Chamber of Commerce, said the NLRB’s Republican majority has restored common sense and balance to a board that unfairly favored labor unions over the past eight years.

“In making rulings, the board is reverting to longstanding holdings and longstanding precedent,” he said. “It’s not as much as a flip-flop as it is restoring the previous understanding.”

Worker rights advocates say the board is making the rulings in an unprecedented way.

Marni von Wilpert, an associate labor counsel at the liberal Economic Policy Institute, said the board never gave the public a chance to comment on its decision to review these standards and that the cases never directly challenged them to begin with.

“That’s a precedence that’s really troubling for an agency that’s supposed to uphold workers rights,” she said.

Craig Becker, general counsel at the AFL-CIO, the nation’s largest labor federation, said the board has routinely given interested parties a chance to weigh in since rulings act as a substitute for rulemaking.

Michael Lotito, a labor and employment lawyer who co-chairs the Workplace Policy Institute at Littler Mendelson in San Francisco, shot back at the criticism, calling it “manufactured howling.”

“Let’s keep in mind the previous board reversed 4,559 years of precedent. … That’s the unprecedented story here,” he said.

“The only thing these cases do is return us back to existing precedent. There is no new law here in these cases,” Lotito said.

Both sides say the spate of rulings isn’t surprising, given that NLRB Chairman Philip Miscimarra’s term expired last Sunday.

“Whenever a board members term is expiring there has always a significant number of decisions that are issued, and it’s done in respect to that departing board member so the individual’s work product is not lost,” Lotito said.

“I think in this particular instance you have the added component that Phil had been in the minority in those decisions and he’s gone out in the majority,” he said.

But Becker noted that the newly minted board member, William Emanuel, decided the joint-employer case without any briefing or argument, at a time when an appeal has been pending before the D.C. Circuit Court of Appeals for the past nine months.

Browning-Ferris Industries, the former waste management company at the center of the case, has asked the court to remand the case back to the board in light of the NLRB ruling last week.

Emanuel, who was one of two members appointed by Trump, has been on the board less than three months.