By Mary Funk
If you were caught up in all of the holiday festivities of December, you may have missed a flurry of activity from the NLRB that resulted in a banner week for employers. In mid-December, the National Labor Relations Board (Board) issued a number of significant decisions – and not only for unionized workplaces.
All employers are prohibited from enacting or maintaining any rules or policies that are contradictory to employees’ Section 7 rights, meaning the right to engage in concerted protected activity. During the Obama Administration, the Board took a close look at employer handbooks and deemed a number of seemingly facial neutral policies, like dress codes, social media prohibitions, and confidentiality requirements, a violation of the National Labor Relations Act (NLRA) if the rule could be “reasonably construed” as interfering with Section 7 rights. However, on December 14, 2017, the Board returned to a more commonsense approach, issuing a new standard and offering some clarification for employers. When evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of Section 7 rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on those rights, and, importantly for employers, (ii) legitimate justifications associated with the rule. This is now known as the Boeing standard, named after the case the Board decided, Boeing Co. & Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001.
The Boeing Board has also identified three categories of rules that will provide greater clarity and certainty to employees, employers, and unions:
• Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples may include a “no camera” rule, which was at stake in Boeing, and general civility policies.
• Category 2 will include rules that warrant case-by-case review as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
• Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a policy that prohibits employees from discussing wages or benefits with one another.
Also, on December 14, 2017, the Board overruled its 2015 Browning-Ferris decision that held that two separate companies are joint employers if they “share or codetermine those matters governing the essential terms and conditions of employment.” Now the Board has ruled the standard for determining if two or more entities are joint employers is proof that one entity actually exercised control over essential employment terms of the other entity’s employees. It is not merely having reserved that right to exercise some control in the future. The control actually exercised must be direct (not indirect) and immediate in a way that is not just routine. This will likely result in many entities no longer being considered joint employers.
Community of Interest
Also in December, the Board overruled the “overwhelming” community-of-interest standard when determining whether a group of employees a union seeks to represent is “appropriate” for collective bargaining. That heightened standard made challenging a union’s proposed bargaining units difficult and encouraged unions to organize smaller, “micro-units.” The Board has now gone back to a traditional community of interest standard, which looks at more than commonalities between the petitioned-for employees, but also whether excluded employees share those same commonalities.
“Quickie Election” Rules
Finally, on December 15, the Board published its final rule on representation election changes. Likely in response to tens of thousands of comments and multiple law suits over the implementation of the revised “quickie election” rules that went into effect April 14, 2015, the Board then invited the public to comment on the final rule, and specifically is seeking feedback on whether the election rules should be retained without any modifications; or if modifications are appropriate, what those modifications could be; or if the rules should be rescinded. See https://www.federalregister.gov/documents/2017/12/14/2017-26904/representation-case-procedures. Public comments must be submitted before February 12, 2018.
If you have any questions about the Board’s recent decisions, please contact a member of Nyemaster’s labor and employment practice group.