‘TIS THE SEASON AT THE NLRB!
In a series of decisions that provide a welcome gift for employers, the National Labor Relations Board (“NLRB” or “Board”) issued several decisions in recent days that overturned Obama-era decisions. Chairman Philip Miscimarra’s term ended December 16, 2017, so the Board clearly made an effort to issue certain opinions before that date. Three are summarized below.
Joint Employer. The Brandt Construction decision overrules Browning-Ferris and creates a standard under which an employer must exercise direct and immediate control over terms and conditions of employment to be deemed a joint employer. This is in contrast to the Browning-Ferris standard where even the potential to exercise control over terms and conditions of employment could have resulted in a joint employer finding.
Workplace Rules. The Obama-era Board issued several decisions that more closely scrutinized employer work rules and struck down many facially neutral policies on the grounds that they could have a “chilling effect” on employees engaging in protected activity. In Boeing Company the current Board backed away from that course significantly. When faced with challenges to policies, the NLRB will now balance employee rights and employer interests when determining the legality of the policy in question. In addition, the Board in this decision created three categories of rules. Category 1: Rules that when reasonably interpreted do not interfere with employee rights, or the potential negative impact on adverse rights is outweighed by the legitimate justifications supporting the rule. An example is workplace civility rules. Category 2: Rules that warrant individualized scrutiny re whether the rule would prohibit or interfere with employee rights, and if so, whether the adverse impact on National Labor Relations Act (“NLRA”)-protected conduct is outweighed by legitimate justifications. Category 3: Rules that are unlawful because they prohibit or limit the exercise of NLRA rights, and are not outweighed by legitimate justifications. An example in this category is a rule prohibiting discussion of wages.
Micro-Units. In the Specialty Healthcare decision, the Obama-era Board changed the landscape of unit determinations and held that a union could petition to represent any group of employees that could rationally be described as separate. In PCC Structurals the Board overturned Specialty Healthcare and returned to the traditional “community of interest” analysis when determining whether a petitioned-for unit is appropriate. This is the standard that was in place for decades.
Quickie Elections. Last, but not least, the Board has requested public comment on the current election rules, commonly referred to as the “quickie elections” rules. The Board has requested comment regarding whether the 2014 rule should be retained without change, whether it should be retained with modifications, or whether it should be rescinded and, if so, whether the pre-2014 rules should be reinstituted as before or revised. This is a signal that the Board intends to revise the current rules regarding the timing of elections, and perhaps other election rules. As those standards come from rule-making, not case law decisions, the Board must go through a process in order to revise them. So while the nature and extent of the revisions to come is not clear, it is clear that changes are in the offing. Stay tuned.