We will cover these, and other recent Board actions, in more depth in a forthcoming Client Bulletin, but meanwhile here are the highlights:
Hy-Brand Industrial Contractors: On December 14, the Board majority overruled the Browning-Ferris “joint employer” decision of 2015 and its use of a liberal joint-employer standard. In Browning-Ferris, the Board found joint employer status when an employer had the power to effectively control another employer’s employees -- even if that power was not actually exercised. As of December 14, the Board has returned to a standard generally requiring “exercised” and “direct” control of employment for joint employer status.
The Board majority opined that the Browning-Ferris standard was a “distortion of common law as interpreted by the Board and the Courts, it is contrary to the Act, it is ill-advised as a matter of policy, and its application would prevent the Board from discharging one of its primary responsibilities under the Act, which is to foster stability in labor-management relations.”
The two Democratic Members, as expected, dissented.
The Boeing Company: Also on December 14, the Board majority overruled the “reasonably construe” standard adopted in 2004 by the Bush-era NLRB for evaluating whether employer polices or work rules were “overly broad” and thus interfered with employee exercise of Section 7 rights under the NLRA. The Board considered a Boeing no-camera rule applicable at sensitive manufacturing sites. An administrative law judge had found that the no-camera rule was overly broad, applying Lutheran Heritage Village, because employees would “reasonably construe” the rule as prohibiting them from using cameras to document workplace issues. The new Board majority noted that the Lutheran Heritage standard was inappropriate because it “prevents the Board from giving meaningful consideration to the real-world ‘complexities’ associated with many employment policies, work rules and handbook provisions.” Under the new standard that will apply, the Board will consider “the nature and extent of the [rule’s] impact on NLRA rights” and the employer’s “legitimate justifications associated with the rule [or policy].”
PCC Structurals: On December 15, Chairman Miscimarra’s last day in office, the Board by a 3-2 vote rejected the so-called “micro-bargaining unit” policy that was announced in Specialty Healthcare. In Specialty Healthcare, the Obama-era Board approved smaller bargaining units, making it possible for unions to “cherry pick” groups of employees for organizing purposes. To defeat a “micro” unit, the employer had to demonstrate that excluded workers shared an “overwhelming community of interest” with employees included in the unit. In its decision Friday, the majority indicated that it will no longer apply that standard but instead will allow employers to show that there is a “community of interest” between employees included in and excluded from the proposed bargaining unit. The Board will retain discretion to evaluate the facts in individual cases, “taking into consideration the interests of employees both within and outside the petitioned-for unit, in light of the policies and purposes of the [National Labor Relations Act].”
Raytheon Network Centric Systems: Also on Chairman Miscimarra’s last day, the Board majority overruled a standard addressing when an employer must bargain over actions that are consistent with the employer’s past practice. Under the Obama-era standard, established in 2016 in E.I. du Pont de Nemours, the Board held that an employer action consistent with an established past practice constitutes “a change,” and thus requires an employer to provide the union with notice and an opportunity to bargain, if either (1) the past practice was established under a management-rights clause in a collective bargaining agreement that has expired, or (2) the action involves exercise of employer discretion. In Friday’s decision, the new Board majority held that an action is not “a change” requiring notice and opportunity for bargaining if the action is similar in kind and degree to an established past practice consisting of comparable unilateral action. The majority said that this new standard applies regardless of whether a collective bargaining agreement was in effect when the past practice was established or involves employer discretion.
The Raytheon case involved changes to employee healthcare benefits made in 2013. The Board majority concluded that Raytheon’s actions were a continuation of its past practice involving similar unilateral changes made at the same time every year from 2001 to 2012. Thus, the new Board majority found that Raytheon did not violate the NLRA by failing to give the union notice and the opportunity to bargain.