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February 1st, 2018
employment
RECENT CHANGES TO NATIONAL LABOR RELATIONS BOARD LAW

Since taking office, President Trump has appointed three new members to the five-member board of the National Labor Relations Board (“NLRB”), who will each serve a five year term.   This has resulted in big changes to Obama-era rulings.  The rulings so far have been pro-employer:

In Hy-Brand Industrial Contractors, 365 NLRB No. 156 (Dec. 14, 2017), the NLRB overruled the Browning-Ferris Industries, 362 NLRB No. 186, standard for determining joint employers.  The NLRB returned to the pre-Browning-Ferris standard, which requires proof that a company actually exercised some “direct and immediate control” over the essential employment terms of another company’s employees to become joint employers;

In Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the NLRB overruled existing precedent and created a new test for evaluating employer’s work rules.   Under the old law, a work rule was unlawful if an employee “would reasonably construe” the rule to restrict protected concerted activity.  Under the new test, a work rule is unlawful only if it explicitly restricts employee’s protected concerted activity, and, if it is found to do so, the NLRB will use a two-part test to evaluate if the reasons for the rule outweigh the potential impact on employee rights;

In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the NLRB reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases.  Now, the NLRB will assess whether employees in a proposed bargaining unit share interests that are sufficiently separate and distinct from those of the remainder of the workforce to constitute an appropriate unit for bargaining based on whether the employees: (1) are organized into a separate department; (2) have distinct skills and training; (3) have distinct job functions and perform distinct work; (4) are functionally integrated with other employees; (5) have frequent contact with other employees; (6) interchange with other employees; (7) have distinct terms and conditions of employment; and (8) are separately supervised; and

In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the NLRB reversed an ALJ’s findings that an employer violated the National Labor Relations Act when it unilaterally implemented changes to employee healthcare benefits.  The NLRB held that actions do not constitute a change if they are similar in kind and degree with an established past practice consisting of comparable unilateral action.  This applies regardless of whether a collective bargaining agreement was in effect when the past practice was created, and whether no collective bargaining agreement existed when the disputed actions were taken. 

Although these rulings are decidedly pro-employer, they do not mean that employers should assume that their actions will be supported by the NLRB.  Employers who are new to dealing with union activities should re-evaluate their work rules and justifications for changes to terms and conditions to ensure they are consistent with these recent rulings.

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