United States: Elaborate: NLRB Ends 2017 With Series Of Decisions Sure To Make Employers Happy This New Year

Last Updated: February 9 2018
Article by Nicholas F. Morisani

The National Labor Relations Board ("Board") issued a series of employer-friendly decisions between December 14-15, 2017 which reverse course on prior decisions that proved extremely burdensome to employers. Each decision is sure to elicit welcome sighs of relief from employers and likely will impact how employers conduct themselves in 2018.

  • Hy-Brand Industrial Contractors, Ltd. Employers utilizing help from staffing or temporary workforce agencies often do not intend to be considered a joint-employer with those agencies. In its 2015 decision in Browning-Ferris Industries, the Board made it easier to establish such joint employer status by holding that two or more business entities will be joint employers based on the mere existence of "reserved" joint control, indirect control, or control that is limited and routine. In Hy-Brand, the Board reversed course and held that joint employer status once again requires proof that two or more entities have exercised joint control over essential employment terms, rather than merely reserving the right to do so. Reversing Browning-Ferris Industries, the Board made clear that the control must be direct and immediate (rather than indirect) and that joint-employer status will not result from control that is limited and routine.  
  • The Boeing Company In its 2004 Lutheran Heritage decision, the Board held that where employees could "reasonably construe" facially neutral employment rules, including policies and handbook provisions, as prohibiting the exercise of NLRA rights, those rules violated the NLRA. This was so even if there was no proof of enforcement in a manner that would violate the NLRA. After Lutheran Heritage, the Board took a highly aggressive position against commonly utilized employee handbook policies and rules, such as social media policies. The Board's decision in Boeing Company, however, scraps the "reasonably construe" standard and holds that the Board now will balance the nature and extent of the potential impact on NLRA rights against the employer's legitimate justifications for the rule.  
  • PCC Structurals, Inc. When faced with employees proposing to organize a bargaining unit, employers can question the appropriateness of the proposed unit. In its 2011 Specialty Healthcare decision, the Board made it more difficult for employers to question the appropriateness of a proposed unit by requiring employers to show that the workers the employer wanted included in the unit share an "overwhelming" community of interest with employees in the proposed unit. Specialty Healthcare's test made it easier for employees to organize, leading to an increase in smaller bargaining units, known as "micro-units," which could burden employers. In PCC Structurals, however, the Board rejected the Specialty Healthcare test. Thus, when an employer questions the appropriateness of a proposed bargaining unit, the Board now will evaluate whether the employees in the proposed unit share a community of interest sufficiently distinct from the interests of employees excluded from the planned unit. In making this determination, the Board will assess several factors, including whether the employees have distinct job functions and perform distinct work, have distinct terms and conditions of employment, and are separately supervised. PCC Structurals thus makes it more practical for employers to challenge the appropriateness of proposed bargaining units.  
  • Raytheon Network Centric Systems Employers of unionized employees may wish to change terms or conditions of employment, such as revisions to insurance, benefits, or wage increases. The issue in Raytheon involved whether, in making such changes, employers must bargain with the union despite the fact the employer had a past practice of making similar changes without bargaining. In its 2016 decision in E.I. du Pont de Nemours, the Board held that all such changes must be bargained for, regardless of whether the employer had a consistent past practice of making them without bargaining. On December 15, 2017, however, the Board issued its decision in Raytheon, overruling DuPont. The Board held that employers are not required to provide unions with notice and an opportunity to bargain over such changes to terms and conditions of employment when these changes were consistent with an employer's established past practice. The Board included one key caveat: regardless of any past practice, employers are obligated to negotiate over these types of changes where a union requests bargaining over announced modifications and where the modification is a mandatory subject for bargaining.

Each of these decisions discard prior Board decisions that led to various burdens for employers. As we enter 2018, employers should expect to see additional changes and thus should keep an eye on the Board's activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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