The song “Changes,” written by Phil Ochs, provides an opportune prism to examine the arguably cataclysmic changes implemented and portended by the new employer-friendly majority at the NLRB at the end of 2017 and expected in 2018.
Sing along, enjoy the lilt.
Don’t cry o’er case law that’s spilt.
Come sit by my side, come as close as you care
The changes at the Board are not a bunch of hot air.
Abandoning Obama-era rules and decisions
An end-of-year new 2017 majority made long-awaited incisions.
The old majority’s reasoning, arguably murky, gray and unsound
Caught in a carousel of time coming way around
On a new Board direction the new majority rearranged.
With a different perspective, making a few bold long-needed changes.
Indeed, changes came swiftly, introducing 2018
With decisional speed like we’ve never seen.
Righting some of the balance between labor and management
Tossing the old and making new precedent.
The Trump Board majority clearly set its sights
To restore employer pre-election free speech rights
To rescind or at least adjust the “Quickie Election Rule”
That the Obama Board adopted to give unions a tool
To speed up elections and postpone key questions
To rush the vote by employees in disputed elections.
We bid adieu to the extent of organizing a micro-unit.
No more requiring “overwhelming” communities of interests to nullify it.
No longer can unions organize on what they can get
Employees will have a larger, more inclusive electorate.
Remember having to revise policies and rules in employee handbooks?
The new Board majority made clear it was giving Obama Board rulings further looks.
The new Board said to balance management’s needs and purposes in its sights
Rather than looking solely at theoretical effects of neutral rules on Section 7 rights.
Be respectful in conduct, cut profanity, or make civility your rule
Became fine in a handbook or Facebook, Twitter or other social media tools.
No longer do employers have to accept inappropriate conduct
No longer do they have to apply a vague protected Section 7 construct.
A new joint employer standard (no pun intended, I attest)
Actual “direct control,” not indirect, was made the joint employer test.
The end-of-year Board moved first, and then a new 2018 Board moved again.
To nullify the direct control decision with the stroke of a pen.
But direct control will be back no doubt
A 2018 Trump Board on this issue surely will win out
The new Board General Counsel wants his Division of Advice
To review ULP charges that challenge Obama-Board rulings, many, not just a few will suffice
More Obama-Board cases will reach the Board for decision
So precedent can change and move with precision.
When sexual harassment investigations need confidentiality
The GC and the Board will introduce a dose of reality
To allow proper exams of workplace misconduct
And protect investigatory privacy from flowing out a viaduct.
In the public sector
There will be a new vector
Limiting union dues and fees that are mandatory
Freeing employees’ pocketbooks, writing a new story.
These are reasonable expectations from the new and then-newer Board Members
Growing from fires of a swinging pendulum’s embers.
Keep tabs on employee dissatisfaction
And take lawful preemptive action.
By taking care
Not to be caught unaware.
It’s not a dream