New York Labor and Employment Law Report
A Quick Summary of Recent NLRB Activity
February 8, 2018
In December 2017, the National Labor Relations Board issued some significant decisions reversing precedent that had been established by the NLRB under the Obama administration, and took other significant actions that may help balance the scales that had been tilted heavily in favor of union interests over the past eight years. Here is a quick summary of those decisions and actions.
Reversal of Legal Standard Regarding Work Rules/Employee Handbook Policies
In 2004, the NLRB issued a decision (Lutheran Heritage Village-Livonia), holding that a work rule or employee handbook policy could be found to violate Section 8(a)(1) of the National Labor Relations Act if employees could "reasonably construe" the rule or policy to prohibit them from engaging in protected concerted activity. The Obama-era NLRB relied on this standard to invalidate numerous seemingly innocuous rules and policies as violations of the Act. In addition, the NLRB General Counsel issued a memorandum on March 18, 2015, that included several examples of common employee handbook policies that would be regarded as unlawful by the NLRB.
In The Boeing Company, which was decided on December 14, 2017, the NLRB reversed the legal standard set forth in Lutheran Heritage and replaced it with a more reasonable balancing test between the nature and extent of a work rule's potential impact on employee rights under the Act and the employer's legitimate justifications associated with the rule. In addition, on December 1, 2017, the current NLRB General Counsel withdrew the March 18, 2015, memorandum. As a result of The Boeing Company decision and the withdrawal of the March 18, 2015, memorandum, employers need not be quite as concerned that their reasonable work rules and employee handbook policies might be deemed unlawful.
Reconsideration of "Quickie Election" Rule
On April 14, 2015, the NLRB implemented new procedures for conducting union representation elections that disadvantaged employers in a number of ways. Under the new procedures, there is a shorter time span between the filing of the representation petition and the election and there is a greater burden on employers to provide information to unions in advance of the pre-election hearing and the election.
On December 12, 2017, the NLRB issued a request for information suggesting that it may reconsider the current representation election procedures. The NLRB has asked for input regarding the following questions:
- Should the election rule be retained without change?
- Should the election rule be retained with modifications, and if so, what should be modified?
- Should the election rule be rescinded?
Interested parties have until February 12, 2018, to submit responses to these questions.
Reversal of "Micro-Unit" Decision
In 2011, the NLRB issued a decision in Specialty Healthcare, holding that the bargaining unit that the union describes in its petition for a representation election is presumptively appropriate, and that if the employer wishes to expand the proposed unit, the employer must show that other employees who are not included in the proposed unit share an overwhelming community of interest with the employees in the proposed unit. This allowed unions to organize "micro-units" of employees in order to increase the chances of winning the election.
In PCC Structurals Inc., which was decided on December 15, 2017, the NLRB reversed the Specialty Healthcare decision. The NLRB returned to the prior approach for determining the appropriateness of a proposed bargaining unit, which is to examine whether the petitioned-for employees share a community of interest that is sufficiently distinct from excluded employees to warrant their own unit.
Reversal of Joint Employer Legal Standard
In 2015, the NLRB changed the legal standard for determining joint employer status under the Act in its Browning-Ferris decision. In Browning-Ferris, the NLRB held that the mere authority to exercise control over employees' terms and conditions of employment is sufficient to find joint employer status, even if such authority is not actually exercised. The decision significantly broadened the scope of who might be considered a joint employer under the Act.
In Hy-Brand Industrial Contractors, which was decided on December 14, 2017, the NLRB reversed the Browning-Ferris decision. The NLRB returned to its prior approach for determining joint employer status, which is that both entities must have direct and immediate control over essential terms and conditions of employment to be considered joint employers.
Reversal of DuPont Decision
In 2016, the NLRB reversed a long-standing precedent by holding in its E.I. DuPont De Nemours decision that an employer must provide the union with notice and an opportunity to bargain before taking an action affecting the terms and conditions of employment upon expiration of a collective bargaining agreement, even if the employer has a history of taking the same action in the past..
In Raytheon Network Centric Systems, which was decided on December 15, 2017, the NLRB reversed the DuPont decision and restored the prior precedent. The NLRB held that an employer does not have an obligation to provide notice and an opportunity to bargain prior to taking an action affecting terms and conditions of employment upon expiration of a collective bargaining agreement if the employer is simply following a well-established past practice in doing so.