by Phil Wilson
The more things change…
My tenth Christmas was the worst. It started out well enough. I knew I was getting one of those handheld LED football games. This was the one where you could play head-to-head with whoever had the audacity to think they could compete with you. My brother Kyle was first in line.
As the big day approached we were giddy with anticipation. Kyle’s special talent is talking people into stuff that will either get them into trouble or hurt (or both). He honed this gift on me throughout our childhood. In this particular case, he talked me into opening up the present early.
I wasn’t a total idiot, so I made him help me unwrap the present. We played a few quick games, then carefully re-wrapped the present and put it back under the tree.
Within about 10 minutes after my mom got home I knew I was toast. Kyle turned state’s evidence before mom even put her purse down. Not knowing this, I tried to protect the conspiracy by blaming her for a poor wrapping job. I was completely hosed.
When all was said and done I got grounded forever for lying. Kyle somehow got away scot-free for turning me in (another annoying habit of his). And the worst part? That game totally sucked. (Luckily, the Intellivision video game we got that year rocked).
I’m a little worried this next couple of months that the NLRB is going to be like that Christmas. I’m excited to finally have a full Republican-majority at the NLRB for the first time in a decade. They have a great opportunity to fix a bunch of the “field leveling” we’ve seen during the Liebman and Pearce Boards.
At the same time, I’m also worried that I might be a little too hopeful. First, it has taken forever to get this Board seated and there are basically 6 work weeks until it’s back to a 2-2 tie. Which means we will be treading water for a few more months while we wait for the Senate to confirm another Board member (rumor has it that John Ring will get the nod there, but nothing official as of this writing).
Even after you get the Board members seated that doesn’t mean they just start rolling back bad law. It takes time. They have to have a case that presents the right issue in front of them. The bigger cases are typically decided by the full 5-member panel, and you can expect the Democrats to do what they can to slow things down. After all, that’s what Republicans do when they are in the minority.
That means the decisions coming out of the Board for the next few months may be like that head-to-head football game: highly anticipated but disappointing. I truly hope I’m wrong about this. But Marvin Kaplan’s first decision sided with Democrat Mark Pearce against Republican Phil Miscimarra. It wasn’t a huge case (and maybe it was just Kaplan being cagey). But still.
The other key position that can’t be replaced quickly enough is the General Counsel. Richard Griffin’s term ends on November 4, and the nominee to replace him, Peter Robb, is now heading to committee hearings and a floor vote in the Senate. The legislative calendar is very tight, so the NLRB may be without a General Counsel for a month or two, but it shouldn’t be long.
That’s a good thing. Because Griffin is leaving with a bang, not a whimper. We just learned recently that at the end of last year Griffin issued guidance on a case to grant Weingarten rights to non-union employees, a move I predicted would happen at the beginning of the Obama Board. Not sure what took so long, but it’s clear Griffin is going to keep shooting until the clock runs out.
This guidance telegraphs to Regional offices to issue complaints in cases where non-union employees ask for a co-worker witness during disciplinary investigations. Until the new General Counsel is seated and can reverse the memo that is the direction from Washington. One would expect a Republican-majority Board to stick with current precedent in this area. However, until the memo is reversed you can expect at least a few Regions to consider issuing complaint in these cases.
I’m a glass half-full person. Which is why I stupidly trusted my brother and opened that present early. But most of the time my trust in others pays off. Which is why I am hoping for more of an Intellivision-NLRB in 2018.