December 21, 2017

Busy Week at the NLRB | Labor and Employment Law

NLRB initiates rule-making procedures

Last week, the NLRB issued 14 decisions and the General Counsel (a/k/a Peter Robb, our former partner) initiated rule-making procedures to revise the “quickie election” rule. Here is a summary of the most important changes for all employers that are subject to the National Labor Relations Act – whether or not you are unionized.

ORGANIZING. In the union organizing context, there were two important developments:

  • Micro-Units. The Board reversed the recent Specialty Healthcare decision which has permitted unions to organize much smaller “micro-units” by making it more difficult for employers to increase the size of the union’s petitioned-for bargaining unit. PCC Structurals, 365 NLRB No. 160.
  • Election Rules. The agency has started the process of revising the election rules, which had substantially decreased the time between the filing of a petition and the election. The rule-making process will likely result in changes making it more difficult for unions to ambush employers by scheduling elections before the employer has time to prepare.

Practical Application: This will make it a bit more difficult for a union to organize your employees.

WORKPLACE CIVILITY RULES. The Board reversed the very broad standard adopted for reviewing whether work rules, policies or handbook provisions violate Section 7 of the NLRA.  Under the previous and now reversed standard, the Board had invalidated codes of conduct requiring employees to “work harmoniously” and conduct themselves in a “positive and professional manner.” Under the new standard, the NLRB creates three categories: (1) rules that are lawful because of the significant employer interests involved (e.g., civility rules, no-camera rules), (2) rules that require an individual analysis, determining whether the rule interferes with protected activity and, if so, whether those interests are outweighed by legitimate justifications, and (3) rules that are unlawful because they interfere with Section 7 rights (e.g., prohibiting employees from sharing wage information). In The Boeing Company, 365 NLRB No. 154, the Board concluded that Boeing was permitted to have a no-camera policy.

Practical Application: You will have more flexibility in drafting common sense provisions for your handbook and your code of conduct.  It is still important to show that the policy is motivated by legitimate employer interests (e.g. safety, preventing industrial espionage, etc.).

JOINT EMPLOYER. The NLRB reversed the recently expanded joint employer standard, returning to the old standard which imposes liability only if the passive employer exercises direct and immediate control over the essential terms and conditions of the employees of the other employer. Hy-Brand, 165 NLRB No. 156.

Practical Application: This will make it easier to protect yourself from liability for a subcontractor’s labor woes.If you have any questions about this brief summary or want to discuss further, please contact any one of us.


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