President Trump nominated Marvin E. Kaplan and William J. Emanuel to fill the vacancies on the NLRB during the summer of 2017. These appointees were confirmed in August and September of 2017, respectively. These recent additions, in conjunction with Chairman Phillip Miscimarra, resulted in a Republican majority on the NLRB for the first time in nearly a decade. The Republican majority was short-lived, however, as Miscimarra’s term expired on December 16, 2017. Still, the newly formed majority did not delay and reversed several Obama-era decisions during those three months. Now that Miscimarra’s term has expired, and until a new nominee is confirmed, the NLRB is back to a 2-2 split of Republicans and Democrats going into President Trump’s second year.
Here is a recap of the biggest decisions of the Trump NLRB so far:
The Boeing Company: Workplace Rules and Employee Handbook Policies
In overturning the 2004 Lutheran Heritage standard, the Board established a new balancing test to determine whether workplace rules unlawfully interfere with employees’ Section 7 rights. Now, when faced with a facially neutral rule or handbook provision, the Board will consider the nature and extent of a challenged rule’s potential impact on employees’ National Labor Relations Act rights and the employer’s legitimate justifications associated with the rule. The Board provided three classifications of employee workplace rules:
• Lawful rules, which cannot be interpreted to interfere with workers’ rights because business interests outweigh any interference.
• Rules requiring individualized scrutiny because they may be legal in some cases, depending on their application.
• Unlawful rules, which are always illegal because business interests do not outweigh any interference with employees’ rights.
Raytheon Network Centric Systems: Past Practice Determines Unilateral Mid-Term “Changes”
Reverting to its 1964 Shell Oil decision, the Board once again holds that a revision to the terms and conditions of employment is not a “change” if it is consistent with past practice. In the Raytheon case, the Board sided with an employer who adjusted its employee health care benefits without first bargaining with the union over the changes. The Board determined that because the unilateral modifications to the health care benefits were a continuation of the employer’s past practice of making similar changes at the same time each year, the employer did not have to bargain with the union over the unilateral decision.
PCC Structurals: Micro-Unit Standard
The Board also reversed its stance regarding “micro-units.” The NLRB overturned its 2011 Specialty Healthcare decision and reinstituted the prior standard for unit scope. Under the previous standard, employers were required to show that the employees they wanted to include in a particular bargaining unit shared an “overwhelming community of interest” with the proposed unit. Now, the determination of a bargaining unit depends on whether the petitioned-for employees share a community of interest sufficiently distinct from excluded employees to justify their own unit.
The NLRB General Counsel’s Office issued immediate guidance on PCC Structurals. Because of the “extraordinary” change in the law, Regional Directors have been granted discretion to entertain requests to revisit a unit determination as defined under a consent election agreement or a direction of election in a currently active case—whether the case is in pre-election or post-election status. Regional Directors are also authorized to delay pre-election hearings to resolve any “appropriate bargaining unit” issues.
Hy-Brand Industrial Contractors: Joint Employer Standard
The expanded joint employer test temporarily came to a halt as the Board overturned the 2015 Browning-Ferris decision in December 2017. For a brief moment, the test for joint employer status returned to the pre-Browning Ferris standard and required proof that alleged joint employers had actually exercised joint control over essential employment terms— rather than merely having a “reserved” right to exercise control. However, on February 26, 2018, the Board unanimously vacated the Hy-Brand decision due to a finding in an Inspector General report, which opined that Board Member Emanuel should have been disqualified from participating in the decision. For now, the Browning-Ferris test once again controls joint employer status.
New NLRB General Counsel Follows Suit of Fellow Trump Nominees
In addition to the confirmations of Marvin Kaplan and William Emanuel, President Trump’s nominee for NLRB General Counsel, Peter Robb, was confirmed in November 2017, and he did not hesitate in taking action. On December 1, 2017, Robb issued a sweeping memorandum that rescinded several Obama-era memoranda related to employer rules, mandatory default language in board settlements, the extension of employee usage of a company’s email to other electronic systems, and the legality of employer statements made to employees during organizing campaigns. He also mandated field offices to request advice on cases involving significant legal issues decided in the last eight years, including unlawful employer handbook rules, joint employer status, and unilateral changes consistent with past practice.
On the Horizon
The NLRB and the NLRB General Counsel have noted that they will also reconsider other Obama-era policies, including the legality of confidential severance agreements and the current “blocking charge” policy. Additionally, the NLRB has sought public input on its “quickie election” representation regulations which significantly reduced the time between filing a representation petition and the subsequent election from about six weeks to an average of 14 to 28 days.
Now that we have a better sense of what a Trump NLRB looks like, we anticipate a more employer-friendly approach to labor relations than we have seen in a while. As we move further into 2018, we expect to see this Board pick up steam and tackle more of the lingering issues that the General Counsel highlighted at the end of 2017.