The “New NLRB” Continues to Shake Things Up

September 18, 2019
Publication
Inside HR
Employee & Labor Relations
Read time: 5 mins

Much to the delight of employers and dismay of unions, the Trump-era National Labor Relations Board (NLRB) has been busy reversing many of the controversial Obama-era decisions on matters of labor-management relations and compliance with labor law. In addition, the current Board and its General Counsel have changed NLRB rules, and signaled more to come, that favor the interests of employers. These developments include the following topics:

  • Election Procedures: The so-called “quickie” or “ambush” election rules implemented in 2015 that require employers to provide more information to unions and shorten the time they have to react and campaign in union elections are being revisited for a possible partial or total repeal and return to the traditional standards.
  • Workplace Rules: The Board overturned the previous standard governing whether workplace rules, policies, and employee handbook provisions unlawfully interfere with the exercise of Section 7 rights protected by the National Labor Relations Act. The board essentially returned to the “commonsense” view of rules as opposed to the view that many rules could be interpreted to violate Section 7 rights. (See General Counsel memorandum GC18-04 at nlrb.gov for details and guidance going forward.) 
  • Joint-Employer Standard: In 2017 the Board overruled the controversial 2015 decision in Browning Ferris Industries and returned to the traditional standard that governs joint-employer liability. That decision, however, was subsequently vacated on an ethics issue claiming that one member of the Board should not have participated in the case. The Board is now considering rule-making along the lines of the traditional standard to reduce uncertainty for employers on this important issue.
  • Duty to Bargain Over Changes Consistent With Past Practice: The Board overruled a 2016 decision that expanded union rights to bargain over changes in conditions of employment. The Board now finds that employer actions do not constitute a change, and thus do not require notice and bargaining, if they are similar in kind and degree with an established past practice consisting of comparable unilateral actions. In this case, Raytheon Network Centric Systems, the Board concluded that the employer’s changes to employee healthcare benefits were a continuation of Raytheon’s past practice involving similar changes made at the same time every year for many years. 
  • Appropriate Bargaining Units: In PCC Structurals Inc., and more recently in the Boeing case, the Board overruled the controversial so-called “micro units” established in a 2011 case and reinstated the traditional community-of-interest standard for determining bargaining units in representation cases. Returning to this standard will help prevent unions from carving out smaller units (cherry-picking) in a plant to help win an election and get their foot in the door to organize additional employees.  
  • Use of Employer’s Email System: The controversial Purple Communications case from 2014 that gave employees the right to use their employer’s email system for exercising their Section 7 rights is also under review. The Board has invited the filing of briefs in a pending case to decide whether it should adhere to, modify, or overrule the standards expressed in that 2014 case. The Board is expected to roll-back at least part of Purple Communications and to address the use of other employer-owned computer resources in addition to email.
  • Independent Contractor Standard:  In SuperShuttle DFW Inc., the Board returned to its long-standing independent-contractor standard overturning a 2014 NLRB decision that severely limited the ability to claim such status.
  • Union Obligations to Notify Employees of Their Rights Not to Become Members, to Revoke Dues Checkoff, and Not to Pay For Union Lobbying Costs:  Two memos from the Board’s General Counsel in 2019 (GC19-06 and GC19-04) notified the regional offices of its expectations in enforcing unions’ duty to properly notify employees of their General Motors/Beck rights (right of employees in non-right-to-work states to only become a financial core member and not pay for certain union political and lobbying costs), and to make it easier for employees to exercise their right to revoke dues deductions from their paychecks. The General Counsel expects compliance with the right of employees to receive clear and timely information from unions in order to properly exercise their rights in these areas. 
  • Scope of Protected Concerted Activity Involving Profane or Offensive Statements:  In recent years some NLRB cases had employers wondering if the protection of Section 7 rights had any limits on what employees could say or do without fear of employer disciplinary action. The NLRB is currently requesting briefing on whether the Board should reconsider its standards for profane outbursts and offensive statements and to modify or overrule the standard applied in previous cases (decided in 2014, 2015, and 2016) that found such actions not to lose the protection of the NLRA.
  • An Employer’s Ability to Make Unilateral Changes: The most recent case involving the “new NLRB” overturning previous cases occurred on September 10, 2019. In MV Transportation, the Board adopted the “contract coverage” standard for determining whether a unionized employer’s unilateral change in a term or condition of employment violates the NLRA. In so doing, the Board abandoned the “clear and unmistakable” standard that had made it very difficult for an employer to successfully argue that it did not need to notify and bargain with a union in making any change in terms and conditions (changes in work rules and policies being a common example).

The elections in 2020 may change things, but in the meantime, it’s clear that the current Board will continue to move quickly in undoing some of the regulations dealing with unions and Section 7 rights.

The specifics on the above developments, and others, can be found on the Board’s website, nlrb.gov, in “news releases” under the news and publications tab on the homepage. The General Counsel memos are also found under this tab. Employers can also contact the labor relations professionals at MRA for assistance in navigating these and other union and NLRB issues.