NLRB Kicks Things into Gear – To Benefit Employers!

Jason E. Reisman

After swearing in the new general counsel, Peter Robb, last month, and given the full complement of members, the National Labor Relations Board has kick-started its efforts to right the wrongs of the Obama Board and make life a little easier for employers.

Led by Chairman Phil Miscimarra (a Republican who unfortunately is stepping down at the end of his term next week), the NLRB has attacked and reversed two critical issues that have plagued employers for the last several years:

  • It has overturned the 2015 Browning-Ferris decision that had changed more than 25 years of precedent regarding the standard for finding “joint employer” status. Browning-Ferris had established that an entity could be deemed a joint employer without actually exercising any direct control over workers who are formally employed by another entity – rather, the first entity would be a joint employer if it just had indirect or even potential control over the workers. With the brand new (yesterday) decision in the Hy-Brand Industrial Contractors Ltd. case, the NLRB reversed the Obama Board’s Browning-Ferris decision.
  • It has established a new standard for evaluating whether employer rules, policies, and handbook provisions that are facially neutral somehow interfere with employees’ exercise of rights under the National Labor Relations Act. In so doing, the NLRB overturned another Obama Board decision that has been a nightmare for employers – Lutheran Heritage Village-Livonia. Based on its decision in Lutheran Heritage, the Obama Board repeatedly found that employers violated the NLRA by maintaining workplace rules even if they did not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, as long as the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. Proof that an employee would not “reasonably construe” a rule that way was difficult, to say the least. In a case involving Boeing, the Board has now set forth a new test that will evaluate two items: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. Using the new test, the Board found that Boeing lawfully maintained a “no-camera” rule that prohibited employees from using a camera to capture images or video without a valid business need and an approved camera permit. Although the Board believed that the rule potentially affected employees’ exercise of NLRA rights, the impact was comparatively slight and was outweighed by important justifications, including national security concerns.

Two big steps in the right direction for employers! What’s next, you say? First and foremost, President Trump will need to nominate a replacement for departing Chairman Miscimarra, in order to bring the Board back to a full five-member complement and re-establish the Republican 3-2 majority. Additionally, the Board recently has asked the public for feedback about whether the “quickie election” rules implemented in 2014 should be rescinded or modified. Giddy up!

Read the follow-up to this post, NLRB Chairman Miscimarra’s Last Stand – Bye-Bye “Micro Units.”

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