Four for four: NLRB decisions benefit employers

Over two short days in mid-December, the National Labor Relations Board issued four historic decisions that will impact workplace law for years to come. Regardless of whether businesses have a union presence or not, they will be affected by these far-reaching rulings. By casting away controversial decisions from the Obama-era NLRB, the newly constituted one now filled with a majority of Republican appointees brought about a return to reasonable standards governing relationships between employers and their workers. After surviving eight years of a decidedly pro-union NLRB that routinely pumped out opinions hostile to employers, businesses across the country can breathe a sigh of relief knowing that balance is being restored to the labor and employment law landscape. Here is a summary of these four decisions. ----- Joint employment doctrine sees rewrite In 2015, the NLRB scrapped a 30-year-old joint-employer test by eliminating the requirement that the business actually exercise control over workers in order to be considered a joint employer. That 2015 decision also said that indirect control such as control through an intermediary would be sufficient to find joint employment. This controversial decision did not seem to comport with reality, bringing about a great deal of trouble in a modern business world replete with staffing arrangements, contingent workforces, franchise relationships and similar systems. But on Dec. 14, the NLRB announced that, in all future and pending cases, two or more entities will once again be deemed joint employers only if there is proof that one entity has exercised control over essential employment terms of another entity's employees (rather than merely reserving the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. This decision is welcome news for employers. It should spare businesses from unwarranted claims of unfair labor practices, preventing workers and unions from bringing such claims against companies using a broad joint-employer theory. Officials should immediately review all of their companies' third-party relationships with counsel to ensure proper precautions are being taken to comply with this resurrected standard. ----- Reasonable workplace rules are OK again Back in 2004, the NLRB created a standard for analyzing handbooks and employer policies, saying they would be held unlawful if employees could "reasonably construe" the rule to prevent them from exercising their rights. Although this case involved a workplace civility rule, the NLRB dramatically expanded its reach over the past eight years. Among other things, the Obama-era NLRB struck down common employer policies covering confidentiality, employee interactions with third parties, employee use of logos and trademarks, and recording and photography in the workplace. These decisions were all cast aside with another Dec. 14 ruling. From now on, when evaluating a facially neutral rule that could be interpreted as having potential to interfere with the exercise of National Labor Relations Act rights, the NLRB will evaluate the nature and extent of the potential impact on NLRA rights, and legitimate justifications associated with the rule. For example, the NLRB upheld a rule set in place by a military contractor that prohibited the use of cameras on its premises for security purposes. Employers should immediately work with their lawyers to see if handbooks and policies should be rewritten. Over the past eight years, many lawyers had counseled their clients to redraft policies to adjust to the unreasonable demands laid down by the NLRB; it is time for reasonableness to reign once again. ----- Micro-units are dead In 2011, the NLRB overturned 20 years of precedent by ruling that unions were allowed organize a minority share of an employer's workforce a "micro-unit." This controversial ruling permitted organized labor to establish footholds in businesses where the majority of the employees might not have desired to be represented by a union. But on Dec. 15, the new NLRB once again cast aside a controversial decision and restored normalcy. It reinstated the previous standard whereby a desired bargaining unit would be examined through a traditional "community of interest" standard, ensuring that small, piecemeal groups of employees could not be picked out to form an inappropriate union. This is a big win for employers unionized and non-unionized alike that have fought to level the labor law playing field. As a result of this decision, employers' ability to combat fractured units has been restored. Unions will no longer be able to establish a bargaining unit by organizing a small group of employees in an effort to infiltrate the rest of the workforce. Company officials should work with counsel to ensure union avoidance strategies are adjusted to conform to this standard. ----- Stability restored after union contracts expire Finally, the NLRB overturned a 2016 case that forced unionized employers, upon expiration of a collective bargaining agreement, to provide advanced notice and an opportunity to bargain to the union even where it continued to carry on with typical workplace practices exactly as it had done previously. That decision concluded that taking the same action would constitute a "change" that would trigger a new set of hoops for the employer to jump through, even if the employer's actions were permitted under the terms of a CBA that was no longer in effect. On Dec. 15, the NLRB reversed course and flatly rejected that case, finding that it contradicted Supreme Court precedent and decades of previous NLRB law. The restored standard provides a welcome return to the pre-Obama NLRB's precedents regarding bargaining obligations following expiration of a CBA. Employers are once again permitted to take unilateral action in these circumstances, so long as the action is based on an established past practice. This provides clarity for employers that maintain consistent benefit plans, for example, across both their unionized and non-unionized workforce that may require annual changes. ----- Rich Meneghello is a partner in the Portland office of Fisher Phillips, a national firm dedicated to representing employers' interests in all aspects of workplace law. Contact him at 503-205-8044 or rmeneghello@fisherphillips.com, or follow him on Twitter @pdxLaborLawyer. Published: Mon, Jan 08, 2018