Big Moves for NLRB Mean Big Shifts for All Employers

My colleague, Jarad Lucan, returns today with a very special post on a ground-breaking week at the NLRB.  For Connecticut employers, the decisions change a lot of what has been going on at the NLRB for the last several years.  

Back in January of 2013, I wrote an article for the Connecticut Law Tribune entitled “For the NLRB, a December to Remember,” which you can read here if you are interested . In that article, I discussed a slew of Obama Administration Labor Board decisions that were handed down in December of 2012 and that construed labor law in a way favorable to employees and unions.

Based on decisions last week from the new Trump Administration Labor Board (issued just before Chairman Philip Miscimarra’s term expired), this December has proven to be another memorable one;  this time, however, employers that are the beneficiaries.

In a decision involving The Boeing Company and its no-camera rule that prohibited employees from using camera enabled devices to capture images and video in the workplace without prior approval, the Labor Board took aim at its 2004 Lutheran Heritage Village-Livonia decision and the standard from that decision applicable to workplace rules and policies.

Under the Lutheran Heritage standard, an employer’s facially neutral workplace rule was determined to be unlawful if it would be “reasonably construed” by an employee to prohibit or restrict the employee’s rights afforded by the National Labor Relations Act.

For years, that standard had been used to find unlawful countless employer policies related to confidentiality, privacy, social media use, and courtesy.

In place of the Lutheran Heritage standard, the Labor Board, in The Boeing Company case, established what amounts to a balancing test.

Under the a new test, the Labor Board first looks at whether the rule or policy, when reasonably interpreted, would potentially interfere with employee rights under the Act.

If it does, the Labor Board then looks at two things:  (1) the nature and extent of the potential impact on employee rights protected by the Act; and (2) the legitimate justifications associated with the rule.  If the justifications outweigh the impact, the rule will be lawful.

The decision also lays out three categories into which the Labor Board will classify rules.

The first category covers rules that are legal in all cases because they cannot be reasonably interpreted to interfere with employees’ rights or because any interference is outweighed by business interests; the second covers rules that are legal in some cases depending on their application; and the third covers rules that are always illegal because they interfere with employees’ rights in a way not outweighed by business interests.

Applying the new test to The Boeing Company no-camera rule, the Labor Board determined that the rule was lawful.

The Labor Board reasoned that the rule potentially affected employees’ rights protected by the Act, but that the impact was comparatively slight and outweighed by important business justifications, including, in that case, national security interests.

In light of this decision, employers should take a fresh look at their workplace rules and policies.  However, unlike such reviews following previous Labor Board rulings when employers would rush to revise or eliminate rules held to be invalid, employers should consider each rule and the justification behind the rule.

In another big move, but in a decision likely to impact less employers, the Trump Administration Labor Board majority voted to overturn the Obama Administration Labor Board’s controversial 2015 Browning-Ferris Industries ruling, which I wrote about here.

In Browning-Ferris Industries, the Labor Board held that two partners in a business relationship are joint employers when one has even “indirect control” over the other’s employees.

The Labor Board’s decision restored the Board’s prior “direct control” standard for weighing joint employer status.  As the Labor Board majority stated, “[w]e return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world.”

Additionally, the Trump Administration Labor Board majority voted to overturn the 2011 Specialty Healthcare “Micro-Unit” standard.

That decision related to the appropriateness of the make-up of a newly petitioned-for bargaining unit and seemingly placed great emphasis on the extent in which the petitioned-for unit was organized.

Under that standard, and employer could only add to the individuals included in a petitioned-for unit if it could prove an overwhelming community of interests.

The Labor Board has now returned to previous precedent and will examine whether petitioned-for employees share a community of interests “sufficiently distinct” from excluded employees to warrant their own unit.

In the coming months, the Trump Administration Labor Board is likely to overturn other labor law decisions, including those related to college student’s rights to unionize, and employee use of employer e-mail systems to engage in protected concerted activities, among others.

Such is the nature of a labor board that pays little regard to precedent and instead shifts according to the administration in power.

Stay tuned.

The post Big Moves for NLRB Mean Big Shifts for All Employers appeared first on Connecticut Employment Law Blog.