December 18, 2017

NLRB, EPA Working To Overturn Costly Labor And Environmental Rulemakings

The National Labor Relations Board (NLRB) repealed a major regulation last week that the Metals Service Center Institute and its partners at the Coalition for the Democratic Workplace (CDW) had opposed. The board also indicated it may soon repeal the ambush elections rule, which sped up the timeline for labor union elections.

In a vote last Friday, the board overruled its 2015 Browning-Ferris Industries ruling, which established a new joint employer standard. In the new 3-2 decision, the board said that to be classified a “joint employer” (jointly liable for labor violations), a business must have a direct and immediate connection to the employees in question. The Browning-Ferris decision had said a business could be classified a joint employer even if its relationship to the employees in question were indirect.

Specifically, Friday’s rule specified that the NLRB will, for all pending and future cases, only find joint employer liability where “there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine.”

In another signal that the board is looking to undo previous rulings, the NLRB last week also issued a Request for Information (RFI) on the union representation election process, or “ambush elections” rule. Based on this news, it is likely the board is looking to return to the way election procedures were held prior to 2014, when the median time for an election to take place was 38 days. Instructions for commenting on the RFI are available here. Comments are due on February 12, 2018. Click here to learn more about the ambush elections rule and here to learn more about the joint employer standard.

In other news: in its report outlining federal regulatory actions for next year, the Trump administration pledged to rewrite the U.S. Environmental Protection Agency’s Clean Power Plan and Waters of the United States rule. The Metals Service Center Institute has opposed both of these regulations.