The National Labor Relations Board has always been known to be a political agency. However, the political nature of the Board has been heightened in the last several decades.
With the appointment of a republican majority to the Board and a republican nominated General Counsel, the Board has acted swiftly to reverse the trend of the Obama Board. Just last week, the Board reversed several decisions issued by the Obama Board.
First, the Board overturned the Obama Board’s ruling in Specialty Healthcare, which allowed “micro-units” of workers to unionize. In its decision, the current Board noted that Specialty Healthcare had given unions too much power to decide the make-up of a bargaining unit. Accordingly, the Board returned to its prior approach, which inquires into whether the petitioned for unit shares a community of interest that is “sufficiently distinct” from excluded employees to warrant their own unit.
Second, the Board overturned a 2016 ruling which limited the changes an employer could implement and restored a long standing precedent that allowed employers to change policies unilaterally if they had taken similar action before. In 1962, the Supreme Court held that unionized employers cannot make unilateral changes to terms and conditions of employment affecting bargaining-unit members, unless they first inform the union and gave the union an opportunity to bargain. Two years later, the Board clarified that a revision to an employment term is not a “change” if it is consistent with the employer’s past practices. In reversing its 2016 decision, the Board is returning to the approach it took for over 50 years.
Third, the Board’ campaign on employee handbooks may be at an end. The Board overturned its 2004 decision in Lutheran Heritage Village, in which it set out a standard for determining the legality of various employee handbook policies. Under the new rule, the Board will consider the nature and extent of the challenged rules potential impact on NLRA rights as well as the legitimate justifications the employer had for implementing the rule. At issue in the recent case was a company’s work rule restricting employers from using camera enabled devices (e.g., cell phones) on company property.
Finally, the Board also abandoned its Browning-Ferris joint employer test. In 2015, the Board expanded its test for determining joint employment to include businesses that had “indirect control” or the ability to assert control over another business, even if they had not actually exercised control. That decision had significant consequences on many employers, including employers who operate franchisees. The Board now returns to its previously long-standing standard, which focused on whether the business at issue had a direct and immediate control over the terms and conditions of employment.
Other changes are sure to be coming.