In a remarkable two days, the National Labor Relations Board – firmly in Republican control – slugged a grand slam, issuing four decisions which overrule Obama-era precedents which had favored unions and troubled employers. On December 14 and 15, 2017, in a series of 3-2 decisions divided along party lines, the Board reversed rulings made by the Obama Board in four key areas:
1. Joint Employer Status: In Hy-Brand Industrial Contractors, Ltd., the Board overruled the controversial 2015 decision in Browning-Ferris Industries of California, Inc., which loosened the standard for finding joint-employer status, and voted to restore the joint-employer standard to what existed prior to 2015: the actual exercise of direct and immediate joint control over essential terms and conditions of employment.
2. Employee Handbook Rules: In The Boeing Company, the Board overruled its 2004 Lutheran Heritage decision under which an employer’s policies, work rules, and handbook provisions could be found to violate the National Labor Relations Act if employees could “reasonably construe” the rule to punish NLRA-protected activity. In its place, the Board adopted a new two-factor test for evaluating a policy, rule, or handbook provision: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.
3. Micro-units: In PCC Structurals, Inc., the Board overruled the 2011 Specialty Healthcare decision which changed how the Board assessed an “appropriate bargaining unit” for purposes of conducting union representation elections — a decision which opened the door to so-called “micro-units” — and declared its intent to return to traditional community-of-interest standards which trace their roots to 1935.
4. Unilateral Changes to Conditions of Employment: In Raytheon Network Centric Systems, the Board revisited the concept of what constitutes a “change” in terms and conditions of employment in a unionized workforce over which an employer is required to bargain. The Board overruled the Obama Board’s 2016 DuPont decision and restored the prior standard which had governed since 1964
First Alert by Calfee, Halter & Griswold Labor & Employment