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When it comes to policies unfavorable to employers, the last eight years were not a particularly good time for businesses, to put it mildly. Thankfully, the nascent Trump administration has already started working on reforms that will improve the situation. A key step in that direction would be to address several labor and employment policies adopted by the National Labor Relations Board, which has been a consistent source of consternation for employers seeking rationality in the law.

Instead of being the neutral arbiter that Congress intended, the Obama-era NLRB transformed itself into a highly partisan agency that seemed willing to do just about anything it could to help organized labor. To that end, the NLRB took an overly expansive view of how the National Labor Relations Act should be interpreted, which resulted in a surge of bad policy outcomes.

A new report from the U.S. Chamber of Commerce highlights 10 of the most egregious of these policies. The report details how the board upended long-standing, bipartisan practice and procedure that had balanced the interests of unions, workers, and employers. According to one study, the NLRB overturned the equivalent of over 4,500 years of substantive precedent.

One of the most dramatic shifts under the Obama-era board was its interpretation of what constitutes an appropriate bargaining unit. In 2011, the NLRB ruled that as long as a union’s proposed unit consists of a “clearly identifiable” group of employees, the board will simply presume it is appropriate and permit a representation election. This standard allows a union to target small pockets of employees, and an employer can rarely challenge these fragmented bargaining units. The result has been union petitions to represent gerrymandered subsets of employees, such as fragrance and cosmetic department workers at a Macy’s store or arbitrarily-selected maintenance employees at a Volkswagen factory that had already rejected unionization.

In addition to allowing unions to cherry-pick employees for organizing, the NLRB also made the process for conducting representation elections much more advantageous to unions. For example, its 2015 ambush election rule reduced the time frame for representation elections from an average of 42 days to as few as 10. The rule deliberately restricts an employer’s ability to present workers with its views on union representation, making it less likely employees will cast an informed vote. It did, however, require employers to give unions all sorts of personal information about their employees.

The NLRB’s overly broad reading of Section 7 of the National Labor Relations Act, which protects the right of employees to engage in “concerted activities,” also led the board to prohibit class action waivers contained in employment arbitration agreements. Such waivers are intended to speed resolution of workplace disputes and reduce the burden of unnecessary litigation. Several federal district and appeals courts rejected the NLRB’s theory, but the board blithely ignored those adverse rulings. Thankfully, the Supreme Court has agreed to consider the matter.

Perhaps the most disruptive policy change has been the establishment of a new “joint employer” standard. Under its previous, longstanding policy, the NLRB found two separate and independent business entities to be joint employers only when they exerted direct and immediate control over the same employees. The NLRB’s activist majority decided to change that easily understood standard and replaced it with an amorphous “indirect” and “potential” control standard that it has applied to franchising, subcontracting, and temporary staffing relationships. That shift introduced great uncertainty into what had been a fairly simple, bright line test and could make employers liable for workplaces they don’t control, and workers they don’t actually employ.

In the span of eight years, the Obama-era NLRB undermined the careful balance of interests that Congress sought to create when it passed the NLRA and instead stacked the deck in favor of organized labor. The result has been a series of destructive and confounding policies that have done nothing to promote investment and growth. Congress and the Trump administration can restore common sense to labor law by appointing new board members who will properly administer the NLRA and by making sensible legislative fixes. For America’s workers, employers and economy, this change can’t come fast enough.

Glenn Spencer is vice president of the Workforce Freedom Initiative at the U.S. Chamber of Commerce.

Trump won't fill hundreds of administration jobs

Also from the Washington Examiner

President Trump doesn’t plan to fill many of the hundreds of appointed political jobs in his administration because he thinks they’re unnecessary.

In an interview with Fox News, Trump said he’s been hit for not filling about 1,200 administration jobs that require Senate confirmation, but people don’t understand that he’s not trying to fill many of those jobs.

“A lot of those jobs, I don’t want to appoint someone because they’re unnecessary to have,” Trump said. “In government, we have too many people.”

Trump offered that up as an example of why he gave himself a C for messaging during his first month in office. He said his communication strategy could be clearer and he’s going to try and change that around with his

02/28/17 7:15 AM

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