The new GOP majority on the National Labor Relations Board (“NLRB”) has overturned a series of Obama NLRB rulings that will give nonunion employers greater flexibility in enforcing workplace rules, including employment-at-will rules; limit union use of micro-bargaining units to organize employees; and limit the situations under which an employer can be deemed a joint employer of another entity’s employees, even though only one entity’s employees have union representation.
These and other decisions were issued on three-to-two votes during the final week of NLRB Chairman Philip A. Miscimarra’s term, returning the law on these issues to the standards in place before the Obama appointees assumed control of the NLRB. The NLRB returned to two-to-two deadlock on December 16, 2017, when former Chairman Miscimarra’s term expired. No successor has been nominated by the President.
For nonunion employers, the NLRB’s decision in Boeing Co., 365 NLRB No.154 (Dec. 14, 2017), may have the most significant day-to-day impact by holding that reasonable employer policies, such as Boeing’s ban on the use of cameras, including all cell phones, are lawful. Boeing implemented the rule banning cameras on its property to protect its trade secrets and maintain secrecy on classified government contract work. Boeing made no attempt to use its no-camera rule to discourage union activity or concerted activity on the part of employees. The rule had been held unlawful by an administrative law judge because the employees would reasonably construe the rule to prevent a union or other employees from engaging in concerted activity. The Boeing decision rejects and reverses this “reasonably construe” legal standard under Lutheran Heritage Village—Livonia, 343 NLRB 646 (2004), and reinstated the old standard of requiring the NLRB to consider the employer’s interests and weigh them against the need to allow employees to engage in legally protected concerted activity. Under Boeing, rules requiring civility in the workplace, banning offensive language, and enforcing the employment-at-will rule are more likely to be found lawful.
“The Obama Board basically found almost every work rule unlawful under the National Labor Relations Act,” said former NLRB General Counsel Jerry Hunter, who was general counsel under President George H.W. Bush and President Bill Clinton. “Boeing will clearly bring . . . common sense back to the interpretation of work rules under the National Labor Relations Act.”
The NLRB also overturned Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), by a 3-2 margin, which allowed unions to obtain elections for “micro-units” of relatively few employees under a standard that required employers to show an “overwhelming” community of interest to justify larger bargaining units. In PCC Structurale, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the new GOP majority found “sound policy reasons for returning to the traditional community of interest standard that the Board has applied throughout most of its history, which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an ‘overwhelming’ community of interest.”
The Trump Board also reversed Browning-Ferris, 362 NLRB No. 186 (2015), under which a company and its contractors or franchisees can be deemed a single joint employer even if the company hasn’t exerted overt control over working conditions for the subcontractor’s employees. The 3-2 majority returned to the prior standard that required the employer to be exercising “direct and immediate control” over terms and conditions of employment in order to find a joint-employment relationship. “[A] finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine,’” the NLRB majority said. Hy-Brand Indust. Contractors, 365 NLRB No. 156 (Dec. 14, 2017).
In other action, the NLRB has asked for public comment on the Obama Board’s “quickie” election regulation that shortened the time frame between the filing of a union certification petition and an election. The quickie-election rule was adopted by the NLRB after Congress refused to pass the Obama administration’s proposed Employee Free Choice Act, which contained statutory provisions cutting the time between the filing of the petition and the election that the Obama Board implemented through regulation. Asking for public comment is the first step in possibly reinstating the former NLRB standard for scheduling elections.
In other cases:
- The NLRB clarified that the employers had no duty to bargain over “changes” that are consistent with past practice, overruling E.I. du Pont de Nemours, 364 NLRB No. 113 (2016). The ruling reinstates the rule that if the employer had made these types of changes in the past, then it could continue to make the same types of changes without bargaining as long as the changes were consistent with the past practice.
- The NLRB rejected the ban on administrative law judges' entering partial settlements over objections by the general counsel and charging party. The NLRB reinstated the “reasonableness” rule that allows an employer to enter a settlement agreement that is deemed reasonable by the administrative law judge. UPMC Presbyterian Shadyside, 365 NLRB No. 153 (Dec. 11, 2017).
- NLRB new member Bill Emanuel said in an unpublished decision that the NLRB may reinstate its traditional rule that graduate students who work as research assistants or teaching assistants are students and not “employees” and therefore cannot organize and recognize a union. The NLRB, however, would first need a new Board member to replace Chairman Miscimarra in order to overturn Columbia University, 364 NLRB No. 90 (2016), and reinstate the rule in Brown University, 342 NLRB 483 (2004). The President has not yet nominated a successor.