The National Labor Relations Board (NLRB) has recently overturned a number of prominent regulations and policies implemented during President Barack Obama’s tenure in the White House. These decisions came in the wake of President Donald Trump’s appointment of Republican employer attorneys Marvin Kaplan and William Emmanuel to the NLRB, granting the board a 3-2 Republican majority.
Republican leadership was short-lived, however, as political equilibrium returned with the December 16 departure of Acting NLRB Chairman Philip Miscimarra, a Republican. The Republicans’ three-month stint in the majority was nevertheless sufficient for the NLRB under Trump to reverse a few major rulings set by the Obama-era board.
The board’s previous standard regarding facially-neutral employer policies (policies which do not, as written, discriminate against any particular group) was established following Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). Lutheran Heritage held that employer policies were in violation of the National Labor Relations Act (NLRA) as long as such policies could be “reasonably construed” by an employee as a breach of NLRA rights.
In a new ruling involving The Boeing Company, the board altered its approach to employer policy cases by swapping the “reasonably construed” standard for a balancing test which weighs “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” In line with the updated standard, the board found Boeing’s no-camera policy did not violate workers’ rights.
By overturning the benchmark for joint-employer liability established in Browning-Ferris Industries, 362 NLRB No. 186 (2015), the board reinstated a traditional standard which decrees that two or more entities can only be considered joint employers if there is proof that all have “exercised control over essential employment terms” of relevant employees “directly and immediately” and “in a manner that is not limited and routine.”
Under the reconfigured joint-employer rule, the board determined that Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co. were joint employers, and are therefore both liable for the unlawful firing of seven striking employees.
According to NLRA guidelines, the NLRB must approve a “bargaining unit,” or group of employees represented by unions in dealings with employers, as “appropriate” for union representation before that unit can engage in collective bargaining. Under the recently reversed Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), board policy made it easier for unions to gain electoral favor through organizing numerous small-scale bargaining units. This change reverts back to the standard prior to the change made by the Obama-appointed NLRB board.
Prior to the board’s overrule of Specialty Healthcare, unions could petition to recruit small fragments of an employee population into “micro units,” which were considered appropriate for collective bargaining unless employers proved that the smallest appropriate units had to include a larger number of employees, on the grounds that these employees share an “overwhelming community of interests” with the specified micro unit. Now that the Specialty Healthcare standard has been reversed, the board is permitted to “evaluate the interests of all employees without regard to whether these groups share an ‘overwhelming’ community of interests.”