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Video: 3:56 minutes. Ross discusses 10 policies he expects the Republican-majority NLRB to change.

Video: 3:56 minutes. Ross discusses 10 policies he expects the Republican-majority NLRB to change.

Current NLRB membership

  • Philip Miscimarra, Chairman – Term expires December 16, 2017
  • Mark Pearce – Term expires December 16, 2018
  • Lauren McFerran – Term expires December 15, 2019
  • Marvin Kaplan – Term expires August 27, 2020
  • William Emanuel – Term expires August 27, 2021

 

With the Board at full strength with five Members - three Republicans and two Democrats, and a new General Counsel, major changes have already taken place, and there are more to come. The General Counsel has shared his vision of the NLRB's future. See NLRB's GC's Roll-Back Agenda.

Major changes in December 2017

Facially neutral workplace rules. In a 3-2 decision involving The Boeing Company, the NLRB overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA). Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. For summary of the new standards: NLRB overrules Lutheran Heritage on facially neutral workplace rules.

Joint employers. In a 3-2 decision involving Hy-Brand Industrial Contractors, the NLRB overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015) and returned to the pre-Browning Ferris standard that governed joint-employer liability. In all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. For more, see NLRB overrules Browning-Ferris on joint employer liability.

Elections matter. When I was teaching labor law classes, it was often difficult to persuade some students that the outcome of a national election can determine the outcome of a case litigated at the NLRB. The pendulum of NLRB decisions swings left and right depending on the makeup of the Board, and that makeup depends on who occupies the White House and the Senate.

Issues where change is in the wind

Below are my top predictions for additional policy changes at the NLRB. General Counsel Peter B. Robb has already shared his vision of the NLRB's future. See NLRB's GC's Roll-Back Agenda.

Election Rule. In 2014 the Board adopted a new election rule [NLRB fact sheet] intended to decrease the time preceding union elections, thus sometimes called the "quickie election rule." The new Board has issued a "Request for Information" [Full text] – the first step in the inevitable roll-back of the Board's controversial 2014 Election Rule. For more, see NLRB signals Election Rule roll-back.

Class-action waivers. In D.R. Horton (2012) [Board decision] [not enforced by 5th Cir], the NLRB said that it's an unfair labor practice for an employer to require employees to agree that they will not bring a class-action or collective-action case, either in litigation or in arbitration. Federal circuit courts are split on this, and the issue is now before the US Supreme Court (Epic Systems v. Lewis, consolidated with two other cases). A decision is expected in early 2018. See

Micro units. In Specialty Healthcare (2011) [Board decision] [enforced by 6th Cir], the Board made it easier to find that a smaller unit of employees is an appropriate unit for holding an election. The Board's current approach: If a small unit has a community of interest, the burden shifts to employer to show that a larger unit has an "overwhelming" community of interest. For example, the Macy's case (2014) [Board decision] [enforced by 5th Cir] found that cosmetics and fragrance employees in a retail store made up an appropriate unit, thus ending a longstanding preference for wall-to-wall units in retail stores. 

Deferral to arbitration. Babcock & Wilcox (2014) [Board decision] modified Olin Corp (1984) to make it more difficult to obtain deferral to arbitration awards, grievance/arbitration proceedings, and pre-arbitration grievance settlements.

Joint representation. Miller & Anderson (2016) [Board decision] overruled Oakwood Care Center (2004) and held that a union seeking to represent employees in bargaining units that combine both solely and jointly employed employees of a single user employer are no longer required to obtain employer consent.

College students. Columbia University (2016) [Board decision] overruled Brown University  (2004) and held that college student assistants are statutory employees, and the fact they are also students does not change their status as employees. 

Employer's email system. Purple Communications (2014) [Board decision] (reaffirmed in 2017) overruled Register Guard (2007) and held that employees may use their employer's email system for protected communications on nonworking time.

Union dues check-off. WKYC-TV (2012) [Board decision] overruled Bethlehem Steel (1962) and held that a dues check-off provision in a collective bargaining agreement remains in force after the collective agreement has expired.

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