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US National Labor Relations Board Continues to Reverse Course on Obama-Era Reforms: What’s Old is New Again

By James J. La Rocca and Joseph E. Santanasto, Gibbons P.C.

A hallmark of the National Labor Relations Board during the Presidency of Barack Obama was departing from well-established precedent to the benefit of labour unions. The Board under the current administration has not hesitated to revert back to those well-established positions that it historically maintained prior to the Obama administration.

This past December alone, the Board issued several decisions reinstating prior precedent. More specifically:

  1. In Valley Hosp. Med. Ctr., 368 NLRB No. 139 (2019), the Board overruled Lincoln Lutheran of Racine, 362 NLRB 1655 (2015) and reinstated employers’ abilities to stop deducting union dues from employees’ pay checks when a collective-bargaining agreement with a dues check-off provision expires.
  2. In Caesars Entertainment Corp., 368 NLRB No. 143 (2019), the Board overruled Purple Communications, Inc., 361 NLRB 1050 (2014) and reinstated employers’ rights to limit the use of their computer systems for business purposes.
  3. In Apogee Retail, LLC, 368 No. NLRB 144 (2019), the Board overruled Banner Estrella Med. Ctr., 362 NLRB 1108 (2015) and reinstated the use of a balancing test to explore whether employers could require employees to keep workplace investigations confidential while the investigations are ongoing.
  4. In United Parcel Service, Inc., 369 NLRB No. 1 (2019) the Board overruled Babcock & Wilcox Construction Co., Inc., 361 NLRB 1127 (2014), and reinstated its prior test, which provides greater deference to the labour arbitration process.

These decisions are emblematic of the current Board’s predilection to eschew the far-reaching decisions under the prior administration in favour of previously well-established precedent that preceded them. Additional changes are on the horizon as well. For example, the Board recently issued a new rule that will better level the playing field for employers in union elections by amending the “quickie” election rule implemented by the Board under the Obama administration. This new rule is scheduled to take effect 16 April 2020.

 


James J. La Rocca

James J. La Rocca

GGI member firm
Gibbons P.C.
Law Firm Services
Newark (NJ), USA
T: +1 973 596 4500
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With 200 attorneys, Gibbons P.C. is a leading law firm in New Jersey, New York, Pennsylvania, Delaware, Washington, DC, and Florida, ranked among the nation’s top 200 by The American Lawyer. The firm provides comprehensive litigation and transactional services to clients ranging from dynamic start-ups to the Fortune 100.

James J. La Rocca focuses his practice on representing management in labor and employment law matters, including matters before the National Labor Relations Board.
Joseph E. Santanasto

Joseph E. Santanasto

GGI member firm
Gibbons P.C.
Law Firm Services
Newark (NJ), USA
T: +1 973 596 4500
E: This email address is being protected from spambots. You need JavaScript enabled to view it.
W: www.gibbonslaw.com

Joseph E. Santanasto focuses his practice on representing management in labor and employment law matters, including matters before the National Labor Relations Board.


Published: Labour Law Newsletter, No. 08, Spring 2020 l Photo: SeanPavonePhoto - stock.adobe.com

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