Delivering for Best-in-Class Wholesaler-Distributors
March 28, 2018

The Department of Labor:

The Secretary of Labor, Alex Acosta, was not confirmed until April; the last of the Trump Cabinet members to be sworn in. And there are key positions in the department that remain vacant today, including the Deputy Secretary (the # 2 position) and half a dozen Assistant Secretaries.  But despite the late start and lack of staff, the Department undertook major policy initiatives in 2017.

The Persuader rule: The Persuader rule – which would have made it difficult for an employer to obtain advice and/or legal counsel during a union organizing campaign – was enjoined in late 2016 by a federal court in Texas.

Last May, DoL sent to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) a new proposed rulemaking rescinding the Persuader rule. Under the standard process, OIRA reviews a new rule and, assuming they approve it, the regulating agency then publishes the proposed rule in the Federal Register and opens it up for public comment.

OMB/OIRA completed its review of the rescission rule on June 6th, and on June 13th DoL’s Office of Labor-Management Statistics issued a new notice of proposed rulemaking (NPRM). The public comment period on the rescission rule ended on August 11th.  NAW participated in this new rulemaking through the Coalition for a Democratic Workplace.

A final rule rescinding Persuader is expected as early as January 2018.

The FLSA/Overtime Rule: The Fair Labor Standards Act Overtime Rule has also been halted by the courts. The Labor Department published a Request for Information on the issue in September, 2017, and NAW participated in that process through the Partnership to Protect Workplace Opportunity, the business coalition on the issue which we help manage. DoL has announced that they will issue a new Notice of Proposed Rulemaking in October 2018, and NAW will submit comments.  We expect to address not only the salary levels, but the related issues of how bonuses and commissions are treated, and we will yet again fight to have the antiquated provisions covering inside sales personnel modernized so that both inside and outside professional sales staff can be treated as exempt.

OSHA “Walk Around Rule:” In February, 2013, the Occupational Safety and Health Administration issued a controversial “opinion letter” announcing that a non-employee union representative could accompany an OSHA official in an inspection of a worksite even if the company is not unionized and has no collective bargaining agreement. In early May, just weeks after Secretary Acosta’s confirmation, the OSHA directive was rescinded.

The National Labor Relations Board (NLRB):

The NLRB is a five-member independent agency, on which there must be at least three seated members for them to conduct business. There were only three seated Board members when President Trump took office – two Democrats and one Republican – leaving two vacancies for President Trump to fill. In addition, the powerful office of General Counsel became vacant in October.

It took the President months to act to fill the Board vacancies, but in mid-June he finally nominated two additional GOP Board members – Marvin Kaplan and William Emanuel; it wasn’t until late September that both were confirmed to finally give the Board a GOP majority. In early November the Senate confirmed Peter Robb as the Board’s new General Counsel, and for the first time in a decade the GOP had full control of the Board.

But that was short-lived. GOP Chairman Miscimarra had already announced that he would not seek a second term on the Board; when his term expired in December his seat became vacant and the Board was back to a 2-to-2 tie.  On January 12th the President announced his intention to nominate John Ring of the Morgan Lewis law firm to fill the vacant Board seat.  That nomination is now pending before the Senate, and on March 23rd Majority Leader McConnell filed a cloture petition on the nomination, beginning the confirmation process that could restore the GOP’s 3-2 majority in early April.

Although the Republicans had a working majority for only a matter of weeks, they quickly began the process of reversing Obama-era rules and precedents. In addition to the Board actions, the new General Counsel aggressively and effectively joined the effort, issuing a memorandum that promised dramatic reversal of Obama-Board actions.

In the last days of Chairman Miscimarra’s term, the Board reversed the Obama Board’s decisions on the Joint Employer Standard, Specialty Health Care micro-bargaining units, and Employee Handbook/protected concerted activity [See our Legal Update]

(Unfortunately, the decision to reverse the Joint Employer standard has itself now been reversed, at least temporarily, as a result of a very controversial determination by the Board’s Inspector General that GOP Member Emanuel had a conflict of interest and should not have voted in the case in question. This is an ongoing controversy on the Board that is unlikely to be resolved quickly.)

The Board also published a Request for Information seeking comment on whether the Obama Board’s Ambush rule – which facilitated faster union certification elections and limited employer rights in the process – should be retained without changes, retained but modified, or rescinded.

In addition to these and other specific Board actions, General Counsel Peter Robb issued a Memorandum on December 1st in which he outlined controversial decisions of the Obama-era Board and opened the door for reconsideration of those decisions.  In addition to the issues described in our Legal Update, GC Robb made note of:

  • The Purple Communications rule that gave employees a right to use their employer’s email system to engage in union organizing activity;
  • Decisions requiring that employers provide access to work premises to off-duty employees;
  • Expansion of the range of permissible conduct by union representatives;
  • Requiring an employer to provide witness statements to unions; and
  • Requiring an employer to continue dues check-off after the expiration of a collective bargaining agreement.

While the current Board can do little more to reverse the pro-union decisions of the last decade until a third Board member is confirmed breaking the current 2-to-2 tie, their aggressive actions in the last weeks of former Chairman Miscimarra’s term suggest that we can look forward to more pro-business initiatives once a majority is re-established.