KemLaw

There is little secret about the fact that the Trump administration is intent on rolling back Obama era employment regulations.

In the past 30 days, the now Republican-controlled National Labor Relations Board (NLRB) has issued a number of decisions that will have benefits for employers in Connecticut and elsewhere.

Here’s a brief description of each:

• During President Obama’s term in office, the NLRB aggressively scrutinized employer policies, handbooks and other rules in the belief that each had the potential to interfere with the rights of employees. During that period, the NLRB held that employers were in violation of the National Labor Relations Act if it could be “reasonably construed” by an employee that an employer’s policies prohibited the exercise of rights protected by the NLRA.
  • The current NLRB has now changed this standard and adopted a so-called balancing test that will evaluate two factors in rules cases going forward: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” With this action, the NLRB appears to be moving towards a more common sense standard in this are
• The NLRB during the Obama years had taken a particularly aggressive position on what is called “micro-unit” union organizing. Micro-unit organizing allows small subsets of a workforce to organize – and tended to place the burden on employers to prove that such micro-units harmed the rights of employees not included in those units.
  • The current Board has now reversed itself and has revived the traditional so-called “community of interest” standard for determining whether a petitioned-for bargaining unit in representation cases, in fact, constitutes a legitimate unit. This change is important to employers concerned about unions targeting narrow groups of employees in order to maximize their chances of winning elections.
• In the Raytheon Network Centric Systems decision, the NLRB is now taking the position that when an employer, during collective bargaining, takes unilateral actions that are “not materially different from what it has done in the past, no ‘change’ has occurred, and the employer’s unilateral actions are no longer violations of Section 8(a)(5) of the Act. This decision marks a return to pre-Obama standards.

We believe these decisions are just a few of the many changes coming from NLRB in 2018. We will endeavor throughout the year to keep our readers abreast of other changes as they occur.

If you are an employer in Connecticut and have questions about labor and employment law, contact the attorneys at Kainen, Escalera & McHale. Each of us has over 20 years of experience in all aspects of employment law and labor law and can help you with this complicated topic. Please contact us if we can help you.

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