The NLRB will be working to issue two major workplace rules and resolve a huge case against McDonald’s in 2019, all while its chair and general counsel move carefully to avoid reigniting ethical controversies from 2017.
Big agenda items include issuing “joint employment” regulations, reworking union election rules, and deciding whether to accept a settlement offer from
The ethics review aims to address concerns voiced by Democratic politicians, labor advocates, and even NLRB career staffers, about officials in
Business coalitions say leadership is simply restoring balance following an aggressively pro-worker Obama-era board. Michael Lotito, an attorney with Littler Mendelson, said he hopes the NLRB will give businesses what they need to plan ahead after years of change.
The board “has a strong responsibility to try to provide the regulated community with certainty,” Lotito said.
Sources familiar with their thinking say Chairman John Ring and top prosecutor
“You can certainly understand these changes as consistent with a broader trend in the Trump administration to downplay the need to protect workers’ rights, and to enhance the interests of employers,” Sharon Block, a former Democratic board member, told Bloomberg Law.
At the same time, the board will see ramped-up congressional scrutiny in 2019, with Democrats taking the House. Labor committees will likely train their sights on the NLRB, said Celine McNicholas, labor law and policy director at the Economic Policy Institute.
“There’s a lot going on at that agency to be held to account for,” McNicholas told Bloomberg Law.
Looking to Avoid More Controversy
Ring and Robb each exercise significant authority over federal workplace policy. Critics will likely continue to view their actions with an eye on the background ethical controversies that have percolated since the board switched to Republican control in late 2017.
The firestorm started in a case called Hy-Brand. Then Chairman
Observers and NLRB insiders say the earlier criticism—including from some management allies—may have caused Robb to change his strategy for reforming the agency. He has pivoted to implementing smaller, piecemeal changes to case-processing and has taken to issuing directives via internal memos, as opposed to the usual public process.
The agency inspector general has also undertaken an investigation to identify employees who’ve leaked policy documents to the press. The NLRB declined to answer questions about the leak investigation.
On the board side, Ring will continue a comprehensive ethics review announced shortly after his confirmation, and aimed at establishing recusal protocols to help avoid a repeat of Hy-Brand.
One item on the Senate agenda the board will also be watching is the pending nomination of former Chairman
Pearce is noted for a number of pro-worker decisions. His renomination by Trump was somewhat unexpected and is vigorously opposed by the business lobby.
Bloomberg Law reported in December that Senate Minority Leader
Lawmakers haven’t reached a deal, and Schumer has denied discussing the nomination with the White House directly.
Two ongoing rulemakings would set the board’s standard for determining whether a company is a joint employer, and modify aspects of union election procedures. The agency doesn’t have extensive rulemaking experience and will have to navigate potentially problematic evidentiary requirements under the Administrative Procedure Act.
Ring, a self-declared “proponent of rulemaking,” has said there are other topics that are appropriate to handle via regulations. Rules take longer than decisions but are harder to undo.
In its more traditional realm of deciding individual cases, the NLRB laid out its framework for analyzing workplace rules in a 2017 ruling involving
“The biggest issue for the board is to start issuing some of these major decisions, whether through rulemaking or the traditional process,” Littler’s Lotito said.
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