Delivering for Best-in-Class Wholesaler-Distributors
June 25, 2018

The Department of Labor (DOL):

The Secretary of Labor, Alex Acosta, was not confirmed until April of 2017; the last of the Trump Cabinet members to be sworn in. And there were key positions in the department that remained vacant, including the Deputy Secretary (the #2 position) who was not confirmed for another entire year.  But despite the late start and lack of staff, the Department has undertaken major policy initiatives.

The Persuader rule: The Obama Administration DOL’s 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.

In May, 2017, 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 6, 2017, 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 11, 2017.  NAW participated in this new rulemaking through the Coalition for a Democratic Workplace.

A final rule rescinding Persuader is expected this summer.

The FLSA/Overtime Rule: The Obama Administration’s Fair Labor Standards Act Overtime Rule was also halted by the courts in a lawsuit in which NAW was a plaintiff. The Trump 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 on the so-called “white collar exemption” to the overtime rules in early 2019, 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, 2017, 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, 2017.

It took the President months to act to fill the Board vacancies, but in mid-June, 2017, 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. Early last 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 last December his seat became vacant and the Board was back to a 2-to-2 tie.  In January the President announced his intention to nominate John Ring of the Morgan Lewis law firm to fill the vacant Board seat.  Mr. Ring’s nomination was confirmed by the Senate in April, restoring  a 3 to 2 GOP Board majority.

Although the Republicans had a working majority for only a matter of weeks last year, 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 on the case in question.  The Board has now indicated that they will pursue a formal rule-making to resolve the Joint Employer issue, and NAW joined allied associations in filing a Petition with the Board supporting that rule-making.

The “Ambush Election Rule:”

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.  NAW joined allied associations in submitting comments on the RFI.  We are awaiting further action on that matter.    

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 the 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.

Based on the actions and statements of the Board since Chairman Ring was confirmed in April, we can expect more pro-business decisions and actions in the near future.