The last three weeks of 2017 saw more significant action by the National Labor Relations Board than the prior two years. Some of the key actions included:
- Joint Employer status again requires actual control. In its infamous Browning-Ferris Industries decision, the NLRB determined that an employer could be a joint employer of another entity’s employees if it had the potential ability to control the employment of the workers at issue, even if the employer never exercised that control. Fortunately, in December 2017, the NLRB returned to the previous standard and held that an employer is not a joint employer of another entity’s employees unless that employer has actually exercised direct control over the employees in the Hy-Brand Industrial Contractors case.
- Micro-units go the way of the dinosaur. In 2011, the NLRB changed its election standard for bargaining units and held that an employer protesting that a potential bargaining unit was too small had to prove that the employees in the small (or “micro”) unit had an “overwhelming community of interest” with any other employees the employer thought should be included. This difficult standard paved the way for unions to organize “micro-units” of employees to get a foot in the door in companies where they couldn’t organize a larger workforce. In the PCC Structurals, Inc. case, the Board returned to the old standard, which allows employers to challenge bargaining units based on the traditional “community of interest test” — making it much easier to thwart so-called “micro-units”.
- Return of the Employee Handbook. In Boeing Company, the NLRB rescinded its prior, subjective test for evaluating the validity of employer rules — whether an employee “could reasonably construe” a rule to restrict their rights under the NLRA — and adopted a new test that views facially neutral rules on an objective basis and that created separate categories of rules, including categories for rules that are presumptively lawful (regardless of how employees would subjectively interpret them). For example, under the new rule employers can adopt “no camera” and civility rules, provided that the rules are appropriately written and the employer has a legitimate business interest behind them.
- The Quickie Election Rule goes under the microscope. On December 14, 2017, the NLRB requested information from the public concerning whether the expedited election rules should be retained, rejected or modified. This request for comments opens the door for the newly constituted NLRB to revoke or revise the “quickie” election rule.
- Management rights are returning. In 2016, the NLRB ruled that an employer was not free to follow past practice and make unilateral changes in the terms or conditions of employment without first bargaining with the union. In Raytheon Network Centric Systems, the NLRB gave employers back their right to make unilateral changes to terms and conditions of employment consistent with well-established past practice without bargaining with the union first.
While its predecessor gradually (but radically) altered existing labor law, the current NLRB has moved quickly to hit the “reset” button and return a number of significant rules to their prior interpretation.
Stay tuned, because the Board is probably not done yet…