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

In 2018.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.