After Republicans regained control of the majority seats on the National Labor Relations Board (NLRB or the board) for the first time in nearly nine years, the majority has swiftly reset the board’s tone. Recently, the NLRB has been busy taking steps to undo some of the more labor and employee friendly standards and opinions that were implemented under the Obama Administration. The result is a return to what many employers would consider to be a common sense approach.
As previously reported here, the NLRB recently overturned its decision in Lutheran Heritage, which ruled that a number of employment policies violate employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA). The NLRB in Boeing Co. rescinded the “reasonably construe” test established under Lutheran Heritage and replaced it with a new balancing test that weighs the potential impact on NLRA rights against the employer’s legitimate justifications for the rule or policy. In the Boeing decision, the board highlighted three categories of employment policies:
- Category 1 – rules that are lawful because the rule does not interfere with NLRA rights or the potential impact on protected rights is outweighed by justifications of the rule
- Category 2 – rules that require individualized scrutiny as to whether the rule would prohibit or interfere with NLRA rights and whether any such impact is outweighed by legitimate justifications
- Category 3 – rules that are unlawful because they prohibit or limit NLRA-protected conduct and the justifications of the rule do not outweigh the adverse impact
Applying this new rule, the board found that Boeing’s no camera policy did not violate employees’ Section 7 rights and found the no camera policy to be lawful.
Joint employer standard
On Dec. 14, 2017, the Board overruled its broad joint employer standard set out in Browning-Ferris. In Hy-Brand Industrial Contractors, Ltd., the board restored its previous joint-employer standard, which requires evidence that the entities actually exercised joint control over essential employment terms. Control must be “direct and immediate,” not simply indirect control. Control that is “limited and routine” is insufficient to establish joint-employer status. In the case, the board found that where a general contractor exercised actual control over the subcontractor’s employees, a joint-employment relationship existed.
On Dec. 15, 2017, the board overturned its decision in Specialty Healthcare, which permitted unions to form “micro-units” of employees. In that decision, the board established the “overwhelming community of interest” standard, which was extremely difficult for employers to meet and resulted in fractured units of represented employees and at times multiple unions.
In PCC Structurals, Inc., the board reinstated the traditional community of interest standard for determining whether a petitioned unit was appropriate. In reviewing the appropriateness of a unit, the board stated that it will look at various factors, including whether the excluded employees and petitioned-for unit of employees have distinct skills and training; are in separate departments; are functionally integrated with other employees; and have distinct terms and conditions of employment.
Changes to workplace policy
Further, the NLRB has overturned a previous decision holding that employers must negotiate with unions regarding changes to employment terms regardless of past practice. In Raytheon Network, the board reinstated precedent that allows employers to unilaterally change workplace policies without union permission so long as those changes are consistent with past practice.
Changes are clearly under way at the NLRB, and these decisions are likely to make it easier for employers to manage their businesses going forward. Employers should consider whether they want to revise certain policies and handbook provisions that had to be re-written in the past few years to conform with the Obama board’s interpretation of what the law required. However, keep in mind that the NLRB always looks at each case individually, and employers need to determine the amount of risk they are willing to take when it comes to making important changes.