Gavel to Gavel: Labor Board goes back to the future

published in The Journal Record | February 22, 2018

Tony Puckett
Tony Puckett

By Tony Puckett

In its short time, the newly reconstituted National Labor Relations Board has returned to the past on important labor-management subjects. With the new administration in Washington, most observers expected the NLRB to revisit key labor rulings of the last eight years. But few expected the trip back to the future to arrive so soon. In four December decisions, the NLRB brought labor law back in line with decades of precedent and experience.

First, the NLRB returned to the prior joint employer standard of direct control, rejecting the amorphous indirect control standard. The joint employer issue is one that can arise in multiple business relationships, including with staffing agencies, franchises and subcontractors. Now, two separate entities will be considered joint employers of the same employees only if both exercise direct and immediate control over the employees, and such control is not limited and routine in terms of telling employees what work to perform, but lacking authority to discipline for how the work is performed.

Second, the NLRB readopted the community of interest standard for determining appropriate bargaining units for union representation. This decision reduces the chances of multiple micro-units of employees with different union representatives and bargaining agreements being certified in a larger workforce with similar personnel, pay and compensation policies. No longer will an employer have to argue about what is an “overwhelming” community of interest among such employees.

Third, the NLRB revisited management rights, ruling that a company with a past practice of making unilateral changes in work rules or policies could continue to make such changes without committing an unfair labor practice. This is a particularly welcome ruling for employers that must annually address changes in health insurance or other benefits.

Fourth, the NLRB recognized the impracticality of its recent rulings on facially neutral workplace policies that had called into question basic policies addressing confidentiality of investigations, respect and civility among employees, and workplace security. The new/old standard adopted balances an employer’s legitimate justifications for a personnel policy with the nature and extent of the policy’s potential impact on labor rights of employees. In the first case under this standard, the NLRB upheld an employer policy barring cameras in the workplace.

With these decisions, the NLRB returned to long-standing rules for recurrent labor-management issues. This should aid businesses as these standards are more practical approaches to legitimate business interests.

This article appeared in the February 22, 2018, issue of The Journal Record. It is reproduced with permission from the publisher. © The Journal Record Publishing Co.