In a flurry of decisions in recent days, the National Labor Relations Board reversed years of pro-employee labor rulings that employers opposed. Business groups cheered the decisions, saying they’ll bring much-needed balance to employer-employee relationships.
Three key decisions, rendered on Dec. 14 and 15, overturned a string of pro-worker, pro-union NLRB rulings. All were timed to coincide with the end of Philip Miscimarra’s term as chair of the NLRB. Although Republicans are poised to retain a 3-2 NLRB majority at least through 2020, the blitz of rulings solidifies a conservative legacy for Miscimarra, who joined the board in 2013 and led it for eight months, from April 24 to Dec. 16, 2017.
The NLRB reversed previous rulings that:
- Changed the definition of a joint employer
- Severely limited handbook policies and work rules
- Allowed extremely small “micro-units” of employees to gain union representation.
In addition, the NLRB launched a formal bid to overturn a 2014 rule that sped up the election process required to certify union representation of a workforce.
Together, the December actions marked a sweeping repudiation of previous NLRB rulings. Employers hailed the new rulings. Organized labor called them an assault on unions and employees. The decisions were all split 3-2, with the Republican majority prevailing.
1. Looser definition of ‘joint employer’
The NLRB’s Dec. 14 decision in Hy-Brand Industrial Contractors, Ltd. overturned its notorious 2015 decision in Browning-Ferris Industries, which greatly expanded the definition of a “joint employer” to include entities that exert even indirect control over another organization’s employees.
Employers decried Browning-Ferris, arguing that it increase the legal liability facing any employer whose work relied on the use of staffing agencies, on-site contractors or outside suppliers to perform work, as well as companies that operate on a franchise basis. Browning-Ferris involved a recycling company that engaged a staffing agency to provide workers. A union argued that both the company and the agency were equally liable under the terms of the National Labor Relations Act.
The board’s decision in Hy-Brand Industrial returned the joint employer definition to one that prevailed for decades. It said only an entity that has exercised “direct and immediate” control over essential employment terms can be considered a joint employer.
2. Reduced risk for handbook and work policies
The board’s Dec. 14 decision in Boeing Company and Society of Professional Engineering Employees asserted the right of employers to establish “facially neutral” handbook rules and policies, as long as they do not compromise employees’ rights under the NLRA.
Boeing overruled a previous decision—Lutheran Heritage—that has bedeviled employers since 2004. Lutheran Heritage held that a seemingly neutral work rule that did not restrict employees’ rights to form a union or engage in concerted activity would nevertheless be considered unlawful if employees might “reasonably construe” the rule to prevent them from exercising their rights. Numerous policy-related decisions by the Obama-era NLRB relied on Lutheran Heritage.
The December decision addressed a Boeing security measure. The military aircraft manufacturer has a long-standing policy banning use of cameras on its property, including cell phones and laptops with built-in cameras. A union said that prevented employees from exercising their NLRA rights.
The NLRB said Boeing’s legitimate justification for the no-camera rule—to prevent theft of classified government information—outweighed the slight impact of the rule on the right to concerted activity. In effect, it said a workplace policy that could conceivably interfere with employees’ NLRA rights is lawful if it is applied in a way that does not.
3. Small ‘micro-units’ can’t form a union
On Dec. 15, the NLRB directly overturned its controversial 2011 decision in Specialty Healthcare, which allowed “micro-units” of employees to band together to form a union—in that case, 53 nursing assistants from a much larger staff.
Before Speciality Healthcare, the NLRB favored “wall-to-wall” union representation—all production workers, for example. Critics of the decision said it made it too easy for unions to establish a presence in workplaces where most employees might not want union representation.
In PCC Structurals, Inc. and International Association of Machinists & Aerospace Workers, the union sought to organize a group of just 100 welders spread across many departments, out of a total production staff of 2,500. The NLRB said it wasn’t up to the union to decide which employees should be organized. That was the NLRB’s job, it ruled, based on “communities of interest” established by workers’ shared characteristics beyond just occupation or job title.
Employer advocates say that standard will make it harder for unions to infiltrate a workforce simply by organizing a small group of employees.
4. ‘Quickie’ union elections — on their way out?
On Dec. 14, the NLRB launched a formal bid to overturn a 2014 rule that sped up the election process required to certify union representation of a workforce. The announcement invites the public to comment on whether the NLRB’s “quickie election” rule should be retained, changed or scrapped altogether. (The deadline for comments is Feb. 12, 2018.)
The 2014 election rule reduced the time between initial filing of a union election petition and actual voting by workers to determine if they want union representation. The rule requires NLRB regional directors to schedule elections “at the earliest date practicable” after a petition is filed. In the past, that process took about 38 days. The 2014 rule theoretically shortened that to as few as 13 days. In reality, it now takes 24 days, according to an NLRB analysis of union representation cases in the year following the election rule’s enactment in April 2015.
The NLRB is seeking public input on three questions:
- Should the 2014 election rule be retained without change?
- Should it be retained but modified? If so, how?
- Should the 2014 election rule be rescinded? If so, should the NLRB revert to the previous election rules or come up with an entirely new scheme?
Critics of the 2014 rule say the faster election cycle stacks the deck against employers that want their workplaces to remain union-free because it provides little time to persuade employees to vote against union representation. The 2014 rule appeared to have little impact on union election outcomes. The NLRB found that workers voted for union representation 66% of the time in elections held between May 2015 and May 2016, compared to 65% in the year before the rule took effect.
