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Agency Changes Vary Across Gov’t

Let’s take a quick look at some recent federal agency developments impacting employers.

President Trump, who had named National Labor Relations Board member Philip A. Miscimarra Acting Chairman on Jan. 23, removed the “acting” part of his title on April 24.

Two more board positions remain to be filled by Trump to bring it up to its full complement of five (See story on this page and AA, 4-30-17, P. 2).

The Fourth Circuit Court of Appeals recently upheld the NLRB’s 2011 decision that a union is protected from decertification for the first six months after a change of ownership of the unionized company.

The First Circuit ruling applies only in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.

However, the decision makes it clear that courts generally will continue to defer to the board in giving weight to the objectives of federal labor law, warn Jackson Lewis law firm attorneys.

“Employers facing successor situations will be severely restricted in attempts to avoid dealing with the predecessor’s union,” they add. “This should be a consideration before entering into purchase or merger agreements.”

The Occupational Safety and Health Administration guidance granting unions “walkaround” rights during safety inspections, already under court challenge, was rendered moot when the agency withdrew it on April 25. (AA, 3-15-17, P. 3)

As a result, union staff who are not recognized bargaining representatives at a facility have no legal right to participate in such inspections. OSHA had held that employees could invite in outside individuals, who were not safety experts.

The decision will deny unions a powerful tool to help them organize an employer where they don’t already have a presence, says attorney Steven Swirsky of the law firm of Epstein Becker Green.

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