Acting just days before the term of Chairman Phillip Miscimarra ended on December 16, the National Labor Relations Board issued four decisions overturning landmark cases expending employee and labor union protections. In a single week, the NLRB returns to pre-Obama-Board standards and upends the apple cart. Each case was decided on a strict, party-line 3-2 vote. Copies of the decisions can be found here.
In The Boeing Company, the Board reversed a line of cases holding that a facially neutral work rule would be found to violate the National Labor Relations Act if employees could “reasonably construe” the rule as prohibiting conducted protected by the Act even if never applied to ban such conduct. Using this so-called “reasonably construe” standard, the Board has invalided countless work rules and policies without any showing that the rule was applied in an unlawful manner and without regard to the employer’s need for such a rule. In Boeing Company, the Board adopted a new standard and announced that going forward it will review facially-neutral workplace policies both in light of the impact such policies have on employees’ protected rights as well as the employer’s justifications for adopting the challenged policy.
In what could be a significant decision for construction contractors, in Hy-Brand Industrial Contractors Ltd., along the same 3-2 party-line vote, the Board reversed the Obama-era Board’s test for determining when two related-companies would be found to be a single “joint employer” for purposes of the Act. Rejecting the Obama-Board’s “indirect control” standard, the Board held that two companies would be considered separate unless company exhibited “direct and immediate control” over the employees of the related-company.
In Dupont, the Board reversed an Obama-Board standard requiring employers to bargain with a labor organization prior to making any change in a mandatory subject of bargaining even if that change being made was consistent with longstanding past practice.
Finally, in PCC Structures Inc., the Board reversed its “micro-unit” standard, returning to case authority holding that the target of a union’s organizing efforts may seek to contest a union’s attempt to carve out one group of employees for organizing when that group shares a community of interest with a larger group.
Since the election of President Trump in November 2016, employers have anticipated these and many more changes in the Labor Board’s approach. See Manufacturing Law Predictions for 2017: Labor and Employment and The 2017 Manufacturers’ Lawyer’s Shrug. Nevertheless, the speed by which the Board acted to implement these changes was unexpected. Future blog posts will explore the impact of these changes and what they mean for construction industry employers.