Labor Relations Law Blog

The National Labor Relations Board gained a Republican majority less than three months ago, but has already disposed of many of the prior Administration’s labor law rules. Just this past week, the NLRB issued 13 decisions, including several important rulings favorable to employers. This bevy of rulings is understandable, given that NLRB Chairman Philip Miscimarra, a Republican, retired on Friday.

In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), the NLRB majority returned to an earlier standard to determine whether a joint employer relationship exists which would impose shared liabilities or bargaining duties upon multiple employers. The key to determining whether a company such as a fast-food corporation is a joint employer of workers employed by another company, like one of the chain’s franchisees, is the degree of control one company has over workers at the other company. The Board last week rejected the relatively lax standard for joint employer status established two years ago in Browning-Ferris Industries, 362 NLRB No. 186 (2015), that allowed an employer to be found liable as a joint employer if it reserved the right to exercise control over employment terms of another company’s employees. Under Thursday’s Hy-Brand decision and pre-2015 law, joint liability depends on whether employer entities actually exercised direct and immediate joint control over essential employment terms in a manner that was not limited and routine.

In a three-to-two decision in The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board’s Republican majority relaxed the standard for determining the permissibility of workplace rules. In doing so, the NLRB overturned its 2004 Lutheran Heritage Village-Livonia ruling for weighing the legality of employee handbook policies. In its 2004 decision, the Board had held that a work rule was unlawful if employees would “reasonably construe” it to prevent them from exercising their rights to engage in union or protected concerted activity.  Since then, the NLRB deemed rules unlawful in a variety of areas, such as confidentiality, employee interactions with third parties, employee use of logos and trademarks, and recording and photography in the workplace. In last week’s ruling, the Board stated that a rule’s impact on workers' rights should be balanced against the employer's business justifications for maintaining the rule. The NLRB found that the Boeing Company’s rule banning cameras from the workplace was lawful, because Boeing’s concern for national security, along with other justifications, outweighed the rule’s potential impact on employees’ union rights.

In another three-to-two Republican-majority decision, Raytheon Network Centric Systems, 365 NLRB 161 (Dec. 15, 2017), the National Labor Relations Board returned to the longstanding law that there is no duty to bargain over changes made pursuant to a past practice. It held that Raytheon could modify its employees’ healthcare benefits after contract expiration because similar changes had been enacted annually for the past 12 years. In so ruling, the Board overturned a 2016 decision, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that held that actions consistent with an established past practice constitute a change and require the employer to provide its union with notice and an opportunity to bargain prior to implementation, if the past practice was created under a management-rights clause in a collective bargaining agreement that had expired or if the disputed actions involved employer discretion.

The Board also recently invited comments on rules implemented in 2015 regarding elections in which employees vote on whether they want to be represented by a union.  Those rules have expedited the election process from an average 42-day timeframe down to a 23-day average and limited discussion of important pre-election issues. The rules also require employers to provide union organizers with a great deal of information concerning potential voters and mandate pre-election hearings within seven days of the filing of the petition, often making employers scramble to find competent counsel, investigate issues, and make strategy decisions. Further, the rules postpone critical election issues such as supervisory status matters, until after the election, creating liability risks to employers.