Deluge of labor board decisions likely as sole Democrat exits (Bloomberg Law)

Reprinted with permission from Bloomberg Law News Dec 11, 2019
By Hassan A. Kanu and Robert Iafolla

  • Five-member board’s only Democrat departs Dec. 16
  • Pro-business decisions expected in coming days

The National Labor Relations Board is expected to be quite busy in coming days, as the agency’s sole Democratic member, Lauren McFerran, reaches the end of her term Dec. 16.

The board has historically issued a flood of case decisions, both routine and major, in the final days of a member’s term. The practice was adopted in light of the agency’s unique structure—a five-seat, bipartisan panel designed so that one member’s term expires each year. McFerran’s departure will make the NLRB a Republican-only board, because the other Democratic seat has been vacant for a year.

The NLRB will stick to past practice this year, and that means the 3-1 Republican majority is likely to release a series of pro-employer case rulings before McFerran departs, according to labor law practitioners and three current and former board officials. That would continue the board’s push during the Trump administration to dismantle a slew of Obama-era decisions that the business community has sharply criticized as overreach.

Cases in which the board is nearly finished drafting an opinion are likely candidates for a ruling in coming days. The board may also take next steps on one or more of the unusual number of federal regulations the agency proposed this year.

“I expect the board will try to get out as many of the decisions where McFerran’s on the panel as they can,” said Jerry Hunter, a management-side lawyer at Bryan Cave Leighton Paisner and former Republican NLRB general counsel. (Mr. Hunter also serves as the current Chairman of the Board of Directors of Associated Industries of Missouri.)

The NLRB often issues decisions via a three-member panel—the minimum required for a quorum—although all members are typically involved in cases overturning existing precedent.

“I think they’ll definitely try to get out any decisions where she’s currently on a panel of three if it’s in a shape to do that, and that’s in part so they don’t have to reassign those to a new member who would then have to start all over,” Hunter said.

The most highly anticipated case ruling the NLRB may hand down before McFerran leaves is one in which it’s expected to reverse an Obama-era precedent that gave workers the right to use company email for organizing purposes. The NLRB, in the 2018 Caesars Entertainment case, asked for public comment on whether it should strike down that 2014 policy, and hasn’t decided the matter.

The board also has been considering for months whether to accept a settlement offered by McDonald’s in a high-profile case that seeks to tag the company as a “joint employer” of workers at franchise restaurants. A ruling against McDonald’s could threaten its business model and those of other companies that rely on contractors, industry insiders and observers have said.

Potential Candidates for a Ruling

The board’s Republican majority has already undone a number of pro-worker rulings issued during the Obama administration. Republicans and business groups have hailed those moves as restoring balance to labor -management relations, while worker advocates have decried what they call the whittling down of rights on the job.

There are other potentially precedent-changing cases that may be decided before McFerran’s term is up. That includes:

  • Apogee Retail , which could overturn the NLRB’s 2015 ruling in Banner Estrella and free employers to require their workers to stay silent about disciplinary investigations;
  • United Parcel Service , which could overturn the NLRB’s 2014 ruling in Babcock and Wilcox and lower the bar for deferring to a decision from private arbitration or a union grievance process; and
  • Valley Hospital Medical Center, which could overturn the NLRB’s 2015 ruling in Lincoln Lutheran of Racine and empower employers to unilaterally stop collecting union dues when a labor contract expires.

Attorneys and officials who spoke with Bloomberg Law generally agreed it’s highly unlikely any of the three Republicans will form a bipartisan majority with McFerran and issue a precedent that favors workers or unions.

“The Republican members of the NLRB are as unalterably pro-employer as any we’ve ever seen and are fairly relentlessly pushing their agenda,” Judy Conti, government affairs director at the National Employment Law Project, a worker advocacy group, told Bloomberg Law in an e-mail.

“I would imagine they will try to put out as many decisions as possible while they still have a quorum, and I also assume that their pro-employer leanings will continue to rule the day.”

Patrick Semmens, vice president of public information at the National Right to Work Legal Defense Foundation, took a different view. The group is a key labor-policy stakeholder on the conservative side of the aisle, and often represents workers who wish to decertify, or oust, their unions.

“Foundation staff attorneys represent only workers, not employers, and yet McFerran has regularly ruled against those workers during her term,” Semmens said.

More “often than not she has been on the anti-worker side of our cases,” he added, and there’s “no reason to believe that pro-union boss and anti-worker bias won’t continue in the final days of her term.”

What’s Next?

The NLRB will likely function with an all-Republican slate for some time after McFerran’s term ends. President Donald Trump isn’t obligated to appoint a full complement of members to the board, and the agency can issue decisions with just three. Trump has yet to nominate someone to fill the board’s other Democratic seat after former chairman Mark Pearce removed his name from consideration in February.

“This is between the White House and Senate Leadership,” NLRB spokesman Edwin Egee told Bloomberg Law in an e-mail.

There’s also precedent for leaving the minority party’s seats empty—the board operated with only Democratic members for nearly eight months during the Obama administration. Some management attorneys and employer advocacy groups favor that option. They’re urging the White House and Senate leadership to keep the seat open and then pair McFerran’s renomination with another term for Republican member Marvin Kaplan in August.

There’s “no need to fill her seat now as the NLRB can function just fine with three board members,” Semmens said when asked whether McFerran should be renominated.

Others have said the board needs bipartisan membership in order to maintain its political independence and to strengthen its decisions. Without minority party representation on the board, many decisions—and possibly some new regulations—may be issued without a dissenting voice.

“The Board was designed to have both” labor and management “amply represented in deliberations, and functions best when it does,” Conti said. She added that it’s important for minority members to articulate their views in a dissenting opinion because those may eventually become majority positions.

Then there are the political implications.

“The other reason why you wouldn’t want to keep it open just to keep it open is that you have an election coming up,” Hunter said. “If you leave both seats open, the next president, if it’s a Democrat, then has two vacancies they can immediately fill, and would be able to appoint the board majority within their first year in office.”

To contact the reporters on this story: Hassan A. Kanu in Washington at; Robert Iafolla in Washington at

To contact the editors responsible for this story: Chris Opfer at; John Lauinger at

© 2019 The Bureau of National Affairs, Inc. All Rights Reserved.

Register now for AIM Legislative Updates



Don’t trust that everything that is done in Jefferson City will benefit your business. While we have had great success in lowering taxes and improving the business environment in Missouri, much of our work also prevents bad things from happening to businesses like yours. Regardless, you need information so you may be informed.

Associated Industries of Missouri is pleased to present our legislative updates in a video format.

Rather than conducting conference calls or webinars, we will be recording video and making it available to you frequently so you may watch on your schedule. You may watch on your phone, tablet, or computer. We will also feature interviews with legislators and other key policy makers from time-to-time.

But wait…there’s more!

You may now register for your area of interest and we will provide an update just on those issues!

For example, if you are a human resources professional, you may want to register for and watch the “HR Issues Update” and learn only about issues that affect your job. If you are a tax professional, you may want to register for and watch the “Tax Update.” If you are most interested in tort reform, you may rather watch the “Legal Reform Update.” And if you want to know everything that is going on, you may register for “The Works” and receive the complete update we have always provided.

The information you need, on your schedule, without wasting your time!

The videos will be updated regularly (when sufficient action has occurred to warrant reporting) during the 2020 Legislative Session. A link will be sent to you when a new video is posted. Best of all, these video updates are FREE to members of Associated Industries of Missouri.

If you know of fellow business people that would be interested in these updates, please send them to us by having them contact Ray McCarty: or (573) 634-2246.


AIM releases legislator vote ratings for 2019 Legislative Session

Associated Industries of Missouri (AIM) has released vote ratings showing how legislators voted on important business issues during the 2019 Legislative Session.

At Associated Industries of Missouri, we make sure your business’ voice is heard in the Missouri Capitol. We regularly testify on issues that are important to your business and our team of lobbyists helps ensure legislators know where we stand on issues.

Part of the political process is holding legislators accountable for the positions they take, either for or against issues that would make Missouri a better place to do business. Equally important is helping to stop the regular assault on employers by trial attorneys and others.

Not every vote rating system is the same, so we want to explain how we rated legislators’ votes in the following pages. We assemble the most important issues in each legislative session, assign a value based on the importance of that issue, and a legislator receives points if they voted in accordance with AIM’s position on that particular bill. We then total the scores for each legislator for each session to obtain the AIM Score.

Several things that are not reflected in the score are very important to us as we work in the Capitol to pass pro-employer legislation. Committee chairmen and women have great power to either advance or stop legislation. And sometimes, legislators will filibuster and block a bill that is favorable to business. There is no accurate way to reflect these activities in a vote rating system, but they are still factors in our ability to accomplish our legislative agenda.

An upward facing green arrow indicates the legislator supported the business position on the bill. A red downward facing arrow indicates the legislator either voted against the business position on the bill or the legislator was absent for the vote when AIM was advocating for passage of the bill. A legislator’s absence on one vote could keep them from getting a higher score, even though the absence may be unavoidable. Nonetheless, these vote ratings generally show an accurate picture of the support we receive from legislators on issues important to business.


VOTE RATINGS FOR 2018 are on our State Election Center page HERE

If you have questions on the scores, please call the AIM office at (573) 634-2246.

Feds investigate UAW corruption – former leader resigns union membership

It has been a tough few months for several United Auto Workers union leaders, to say the least.

Former UAW President Gary Jones and a top aide have been accused of conspiring to embezzle more than $700,000 in member dues and splitting the money. Also, criminal charges have been filed against Edward “Nick” Robinson of St. Louis, president of a regional UAW community action program council conspiring to embezzle union funds and conspiracy to defraud the federal government.

Jones announced last week he would resign his membership in the UAW, having already been removed as the union’s leader.

You can read more about both stories in the Detroit News here and here.

Associated Industries of Missouri backed a bill that would have allowed union members to decide whether they should support their union with their dues. The “right to work” legislation, after it was passed by the legislature, was referred to voters following a successful signature campaign led by union officials. Union leaders convinced union members the measure would weaken the union. AIM and other business groups argued the proposal would give members a stronger voice in the operation of their unions.

Voters ultimately rejected the “right to work” proposal by a wide margin.

“It would have been very interesting to see if this type of corruption could be prevented if union members would have had the stronger voice that would have been provided by the right to work bill,” said Ray McCarty, president and CEO of Associated Industries of Missouri. “We believe it would have required union leaders to work harder for their members’ support. Perhaps if union leaders had to prove their value, they would spend more time representing their members interests and less time on vacation at their members’ expense,” he said.

“Missouri Viewpoints” hosts AIM president McCarty to discuss Missouri manufacturing

The Missouri Viewpoints program, hosted by Mike Ferguson and syndicated statewide, recently interviewed Ray McCarty, president and CEO of Associated Industries of Missouri (AIM) regarding manufacturing.

Specifically, McCarty talked about a new initiative led by AIM, Missouri Enterprise, Governor Mike Parson’s administration, university officials and more, to establish a manufacturing policy in Missouri, the “Manufacturing Policy Academy.”

Funding for the Manufacturing Policy Academy has been provided by the National Institute for Standards and Technology (NIST). The goal: to provide a sustainable manufacturing policy in Missouri.

McCarty talked about the effort, along with manufacturing incentives and the importance of manufacturing to Missouri’s economy in this short video (courtesy of Missouri Viewpoints).

Voice of Missouri Business at COST 50th Annual Meeting

Ray McCarty, president and CEO of Associated Industries of Missouri was a panelist at the 50th Annual Meeting of the Council on State Taxation (COST) in Washington, DC, on October 25, 2019.

McCarty participated in a panel with tax leaders from other Midwest states, including the Kansas Chamber, Minnesota Chamber of Commerce, Ohio Chamber of Commerce, Taxpayers’ Federation of Illinois, Iowa Taxpayers Association, Illinois Chamber of Commerce Tax Institute and Indiana Chamber of Commerce.

McCarty discussed the passage of several key tax provisions in the 2019 session, including a provision to prevent a tax increase on some corporations due to a deduction limitation in the federal tax code, a provision that changes the three year statute of limitations for filing a sales/use tax refund to ten years, and the failure of the state to pass legislation addressing internet sales made by companies outside Missouri to Missouri customers in the wake of the Wayfair case. Missouri is one of three states with a sales/use tax that failed to address the Wayfair decision during the 2019 session.

“We would like to thank COST for weighing in on the interest deduction limitation issue by sending letters and providing critical information we used to prevent a tax increase on Missouri corporations,” said McCarty.

Manufacturing policy for Missouri

October 31, 2019 – Missouri is one of a few states chosen for support in developing a state manufacturing policy. A listening session was held at the offices of Associated Industries of Missouri yesterday to discuss the policy and allow manufacturers and manufacturing advocates to offer ideas and suggestions.

The move to establish a manufacturing policy in the states originated in and is being driven by the National Institute of Standards and Technology (NIST) through the Manufacturing Extension Partnership (MEP). Missouri Enterprise serves as Missouri’s MEP center. Along with representatives of Governor Mike Parson’s office and key legislators, the Missouri Department of Economic Development, Missouri Enterprise, Associated Industries of Missouri, the University of Missouri system, The Missouri Economic Development Council, the St. Louis Economic Development Partnership, private manufacturers and many other economic development and manufacturing advocates are leading the effort.

A capacity crowd at the Associated Industries of Missouri offices met in the first listening session to share ideas and begin formulation of a state manufacturing policy.

Senator Mike Cierpiot, Chairman of the Senate Economic Development Committee, was present at the hearing, as well as many manufacturers and thought leaders from across Missouri.

“I remember when the state and federal governments were not interested in ‘chasing smokestacks’ and they ceded manufacturing to other countries,” said Ray McCarty, president and CEO of Associated Industries of Missouri. “Now, that trend has reversed and, thanks to the leadership of President Trump and Governor Mike Parson, American and Missouri manufacturing is rebounding in importance. We need to use this opportunity to set the table for future generations and ensure manufacturing remains a priority regardless of changes in political leadership,” he said.

Attendance at this first listening session was at capacity and many were turned away, but the group plans to hold future listening sessions to gather as many ideas as possible.

A leadership team will consider the ideas offered at the forum as they move forward in establishing goals over the coming year. We will continue to update you on the progress of this effort.

Photo courtesy of Robert Harrington

Former Democrat State Representative Michael Colona appointed associate circuit judge

Governor Mike Parson appointed former Democrat state representative Mike Colona to the bench as an associate circuit judge on Friday, October 18.

As an attorney, Colona’s application for the post shows he lost 6 of the 10 cases he listed, settled one case and his client accepted a plea deal in another case. In fact, he won only two cases of the 10: an expungement action and a challenge to an administrative SATOP assessment.

Colona’s legislative biography reveals he was an active member of the Missouri Association of Trial Attorneys (MATA), the association of plaintiff’s attorneys that opposes nearly all business tort reform measures. As a legislator, Colona won the 2012 Champion of Justice Award from MATA, according to his application.

Colona’s voting record on tort reform measures shows why he may have received that award.

In 2015 and 2016, his final two legislative sessions, Colona voted against legislation Associated Industries of Missouri (AIM) supported that would have:

  • allowed enforcement of arbitration agreements in employment contracts;
  • restored the federal standard of proving discrimination cases to require discrimination to be the “motivating factor” in the alleged discriminatory action;
  • restored punitive damage caps in medical malpractice lawsuits;
  • allowed recovery of only the amount actually paid for healthcare services, rather than amounts billed by healthcare providers; and,
  • established the same criteria for evaluating expert witnesses as is used in federal courts in Missouri and in state courts in many other states.

Colona’s voting record was consistent on legal matters for his entire 8 year career – and always against the position taken by business advocacy groups like AIM. Colona’s record on other business issues was just as bad, leading to a total average voting score of 18/100 in AIM vote ratings for 2015/2016.

The appointment of an associate circuit judge is important as it may begin a judge’s ascent to higher courts. Missouri Supreme Court Judge Zel Fischer was an associate circuit judge for two years before he was appointed to the Supreme Court in October 2008 by Governor Matt Blunt.

Most recently, Colona was the managing attorney of the law firm Colona & Gentle, LLC, according to the press announcement from the governor’s office.

USDOL issues final overtime regulation update

On September 24, 2019, the U.S. Department of Labor announced a final rule to make 1.3 million American workers newly eligible for overtime pay. As employers, you need to be ready. There are very few exemptions from the Fair Labor Standards Act (FLSA). If you are an employer that receives $500,000 or more per year, you are probably covered and required to follow the guidelines. The new rule is effective January 1, 2020.

Associated Industries of Missouri and our member employers complained about the previous overtime regulation that was enacted during the Obama administration, setting the minimum salary for exempt employees at $47,476 per year. Because that regulation was challenged in court, the USDOL is currently enforcing the previous 2004 threshold of $23,660 per year. The proposed new threshold enacted under the Trump administration will be $35,568; HOWEVER, employers may count certain non-discretionary bonuses and commissions. See the actual rule or the USDOL’s overtime webpage for details.


The final rule updates the earnings thresholds necessary to exempt executive, administrative and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements, and allows employers to count a portion of certain bonuses/commissions towards meeting the salary level. The new thresholds account for growth in employee earnings since the thresholds were last updated in 2004.

In the final rule, the Department is:

  • raising the “standard salary level” from the currently enforced level of $455 per week to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • raising the total annual compensation requirement for “highly compensated employees” from the currently enforced level of $100,000 per year to $107,432 per year;
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices; and
  • revising the special salary levels for workers in U.S. territories and the motion picture industry.

Disclaimer: This final rule has been submitted to the Office of the Federal Register (OFR) for publication, and is currently pending placement on public inspection at the OFR and publication in the Federal Register. This version of the final rule may vary slightly from the published document if minor technical or formatting changes are made during the OFR review process. Only the version published in the Federal Register is the official final rule.

The final rule is effective on January 1, 2020.

Additional Information

Special session concludes with passage of motor vehicle trade-in bill

House Bill 1, filed by Rep. Becky Ruth and handled in the Senate by Sen. Wayne Wallingford, was passed by the Missouri Senate today, concluding the business of the General Assembly in the special legislative session called by Governor Mike Parson.

Associated Industries of Missouri supported the bill, along with the automobile and marine dealers, recreational vehicle dealers, and the Missouri Department of Revenue.

Acting Director of Revenue Ken Zellers testified that the Department appealed the AHC decision that had been issued in favor of the taxpayer because they wanted clarity. He said earlier decisions had left the issue unclear.

The Department has a regulation in effect that allows sales tax credit for multiple trade-ins. The trade-in credit is important to companies that have more than one vehicle (fleets, etc.), but also very important to individuals purchasing vehicles and selling their current vehicles.

The Administrative Hearing Commission issued a decision in favor of the taxpayer in the case allowing a refund for multiple trade-ins, but the Department of Revenue appealed that decision to the Missouri Supreme Court. The Supreme Court ruled against the taxpayer and in favor of the Department’s position, denying the refund. Governor Parson then called the special session to restore the law to allow multiple vehicles as trade-ins, within 180 days before or after the purchase of a new vehicle, resulting in the bill.

The Department of Revenue’s regulations, long-standing practice and the law all now allow sales tax credit for multiple trade-ins/sales within 180 days before or after the purchase of the new vehicle.

The Senate concluded their business in less than 45 minutes and the special session was essentially adjourned.