Trump NLRB Targets Obama-Era Precedent


By: Brian Boyd

By no means is following the developments of the National Labor Relations Board (the Board) a spectator sport.  However, recent developments on the Board just might change that.  While the political makeup of the Board will generally dictate Board policy at a given point in time, the Obama-ERA Board took this to new levels by overhauling longstanding precedent and replacing it with labor-friendly rulings.  With a newfound Republican majority, the Board has begun targeting these Obama-era policies with a newfound zeal for employers’ rights. This is prone to have lasting implications on the rights of all employers, not just those whose employees are unionized.  Because of this, it is especially important to pay close attention to Board developments in the coming months.  So far, the Board has already rolled back four key Obama-era rulings.

Joint Employers – In Hy-Brand Industrial Contractors 365 NLRB No. 156, the Board rolled-back its expansive joint employer rule.  The Obama-era rule rendered joint employer status to any employer with indirect control over the terms and conditions of employment or reserved the authority to do so.   In Hy-Brand, the Board adopted a common-sense approach, rendering joint employer status only when the alleged-joint employer “actually exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control)” the joint control is “’direct and immediate’ (rather than indirect).” The Board further affirmed that “joint-employer status will not result from control that is merely ‘limited and routine.’” 

Micro-Units – In PCC Structurals, Inc., 365 NLRB No. 160, the Board overturned the controversial “micro-unit” ruling which permitted the certification of bargaining units that excluded certain employees sharing a community of interest unless the employer was able to show that “employees inside and outside [the] proposed unit share an overwhelming community of interest.”  This standard placed a tremendous burden on any employer seeking to challenge “units” hand-picked by a union seeking representative status. In PCC Structurals, the Board rejected the micro-unit standard and returned to the fact-intensive “community-of-interest” analysis requiring the exclusion of certain employees only when the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh the similarities with unit members.”  The Trump Board killed the Obama Board’s burden shifting rule too, stating that “at no point does the burden shift to the employer to show that any additional employees it seeks to include share an overwhelming community of interests with employees in the petitioned-for unit.”

Employee Handbooks – In The Boeing Company, 365 NLRB No. 154, reversed the Obama Board’s trend of striking down common sense employment policies in favor of a more common sense approach.  Previously, rules such as no-camera requirements, rules requiring employees to maintain “harmonious interactions and relationships,” and basic standards of civility had all been found to violate the National Labor Relations Act (NLRA). Under the old standard, an employer policy would be found to violate the NLRA whenever it could be “reasonably construed” to violate protected rights.  The Trump Board replaced this standard with a more common-sense approach that balances the employer’s legitimate justifications in enacting the rule against the potential impact on NLRA rights.  In the wake of The Boeing Company, it is clear that the NLRB will take a more employer-friendly stance with regard to workplace rules and procedures.

Duty to Bargain – In Raytheon Network Centric Systems, 365 NLRB No. 161, the Trump Board overturned the Obama-era ruling that employers had to provide the union advance notice and an opportunity to bargain whenever it sought to rely on a past-practice created under the management rights clause of an expired collective bargaining agreement.  In Raytheon, the Board held that, regardless of how the practice came about, “an employer’s past practice constitutes a term or condition of employment that that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past.” 

This is only the tip of the iceberg.  We can expect the Trump Board to ring in the new year by overturning even more Obama-era precedent.  It is unknown how fast, and to what extent, the Board will roll back the previous regime’s labor-friendly rulings policies.  

One thing does remains clear, however.  Employers have a newfound reason to follow Board developments.