With the election of Donald Trump, employers are asking what changes are likely at the National Labor Relations Board. Presently, there is a 2-1 Democratic majority of Board Members. A former union lawyer is the General Counsel and has the power to decide which unfair labor practice cases are litigated. Although there is a tradition that the Board should not decide major cases when not at full-strength, it is possible that the current majority will ignore the tradition and continue to issue far-reaching decisions.
It will take time to overturn precedents the current Board has set as the members do not choose the decisions that come before the Board. History suggests that it will take most or all of the next four years before a significant number of precedents are reversed. However, employers are well-advised, if charged with unfair labor practices, to argue for reversals of recent anti-employer precedents. This tactic was used successfully by unions to effect change at the Obama Labor Board and similar appeals may receive a receptive hearing once a Trump Labor Board is in place.
President Trump can rescind executive orders and policy statements. This may result in changes to some regulations at the Department of Labor, such as the “blacklisting” rules (requiring reporting by government contractors of federal labor “violations”) under the Fair Pay and Safe Workplaces Executive Order of President Obama. In addition, a new administration may change the government’s legal position on contested matters. For example, most of the blacklisting rules, the DOL’s persuader rules (requiring reporting by lawyers and consultants working on organizing and other employees issues with employers), and the new Fair Labor Standards Act rules (raising the salary level for exempt employees), have all been enjoined by federal courts. The Trump administration may decide not to appeal or to drop any appeals of those orders, effectively killing those rules.
Matt Austin who owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.