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The NLRB’s Shift to Employer Friendly Positions

The National Labor Relations Board has been retreating from the pro-labor positions that it took during Barack Obama’s presidency. In August 2017, the new administration’s appointments gave the Board its first 3-2 Republican majority in over eight years. Although the departure of NLRB Chairman Philip A. Miscimarra on December 16, 2017 returned the Board to a 2-2 Republican-Democratic split, management-side labor attorney John Ring was nominated to the Board on January 12, 2018. Once the Senate confirms Mr. Ring, the NLRB will again have a 3-2 Republican majority. In addition, on November 8, 2017, Peter B. Robb became the Board’s General Counsel. The new General Counsel is expected to ask the NLRB to reconsider how it enforces the Act in many instances, and has also been considering substantial changes in the operation of the Board’s Regional offices. These developments affect both union and non-union employers, because the rights that the National Labor Relations Act provides to employees apply in both union and non-union workplaces

The Board’s recent pro-employer actions include the following decisions.

The Boeing Company

In its recent decision in The Boeing Company, the Board rejected the standard it established over a decade ago in Lutheran Heritage Village–Livonia. In Lutheran Heritage, the NLRB ruled that an employer violates the NLRA when it maintains a workplace rule that “reasonably tends to chill” employees in their exercise of their rights under the Act. Using this reasoning, the NLRB previously found in many cases that facially neutral workplace rules violated employees’ rights under Section 7 of the NLRA. Some of those rules involved policies requiring employees to behave in a professional manner or to work harmoniously, and policies banning profanity and abuse among co-workers. In particular, some of those rules included civility requirements in employers’ social media policies. To prevail, employees merely had to show that the language of the rule could be interpreted as violating their right to engage in concerted activity. The Board would then not consider the employer’s reason for the rule. 

In The Boeing Company, the employer, a manufacturer of military and civilian aircraft, established a blanket ban of camera-enabled devices on its premises to protect highly-sensitive information and to avoid security and safety risks. The Administrative Law Judge found that this Boeing policy tended to chill employees’ exercise of their Section 7 rights. However, the NLRB reversed the ALJ, and overturned the standard established in Lutheran Heritage. The Board held the camera ban rule to be lawful, reasoning that employers’ interests in maintaining certain workplace rules should be taken into consideration. The Board explained that Lutheran Heritage failed to take into account real life facts and circumstances that may necessitate the implementation of restrictive workplace rules.

The new standard for workplace rules established in The Boeing Company, is that if a rule does not explicitly restrict activities protected by Section 7 of the NLRA, then it will only be deemed a violation of the Act if: (a) employees would reasonably construe the language of the rule to prohibit Section 7 activity, (b) the rule was promulgated in response to union activity, or (c) the rule was applied to restrict the exercise of Section 7 rights. This standard provides for consideration of both employees’ interpretation of work policies and employers’ interest in instituting the policies.

PCC Structurals, Inc.

The Board in PCC Structurals, Inc. recently overturned its prior “micro unit” rule that it established in Specialty Healthcare & Rehabilitation Center of Mobile. In Specialty Healthcare, the Board had adopted new standards for determining whether it would conduct elections among small groups of employees, i.e., micro-units, when employers challenged such units as inappropriate because they excluded other employees with whom the petitioned-for employees shared a community of interest. In such situations, the Specialty Healthcare decision placed the burden on employers to prove that the employees they desired to include in the petitioned-for unit shared an “overwhelming community of interest” with the union’s proposed bargaining unit. Under Specialty Healthcare, unions could cherry-pick small groups of employees at larger employers that were traditionally harder to organize.

In PCC Structurals, Inc., the Board rejected the “overwhelming communityof-interest” test and clarified the correct standard for determining whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees. The Board explained in PCC Structurals that it would return to its traditional community-of-interest analysis and abandon the “overwhelming community-of-interest” test

Quickie Election Rules

On December 12, 2017, the Board published a Request for Information seeking comments on whether the “quickie” union election rules it adopted in 2014 should be retained as is, kept with modifications, or rescinded entirely. We believe that, after it has reviewed all comments, the Board will revise the “ambush” election rules to make them less hostile to employers.

Hy-Brand Industrial Contractors, Inc.

Before Chairman Miscimarra’s term ended, the Board, in Hy-Brand Industrial Contractors, Ld., had overruled the pro-union joint employer test that it had adopted in 2015 in Browning-Ferris Industries. However, on February 26, 2018, the NLRB vacated its decision in Hy-Brand, thus reinstating the Board’s Browning-Ferris union-friendly joint employer test that Hy-Brand had overruled. The Board decided to vacate Hy-Brand after the NLRB’s Inspector General issued a report that concluded that Member William Emanuel should have recused himself from participating in the Hy-Brand decision. Emanuel’s former law firm represented one of the joint employers in the Browning-Ferris decision. Under the reinstated Browning-Ferris standard, the Board’s position is that two entities are joint employers where one exercises indirect control over the other’s employees, or where one entity has reserved rights of control over the other’s employees, even if unexercised. However, it is very likely that the Board will reverse Browning-Ferris again when the opportunity arises.

KHRG Employer LLC

The Board recently upheld an employer’s decision to discharge an employee for engaging in dishonesty and a security breach in circumstances where the prior Board likely would have ruled for the employee. In KHRG Employer LLC, a hotel discharged a worker after he engaged in a security breach while leading a delegation of nearly twenty individuals — many of whom were not fellow employees — into the non-public areas of the hotel to deliver a petition to the hotel’s General Manager. The General Manager’s office, where the delegation delivered the petition, was in a secure area of the hotel, behind a locked door. In order to enter the secured area, where the hotel stored cash and personnel files, the worker falsely insisted that the entire delegation was comprised of hotel employees. The Board reasoned that the employee’s conduct in presenting the petition with other workers ordinarily would be protected concerted activity under the NLRA. Nevertheless, the NLRB concluded that where non-verbal misconduct is part of the “res gestae” of an employee’s protected concerted activity, the Board will “balance employees’ right to engage in concerted activity, allowing some leeway for impulsive behavior, against employers’ right to maintain order and respect.” Here, where the employee’s conduct was not impulsive, and where the employee had lied to a security guard, the Board ruled for the employer hotel.

Employer Tips

As soon as the Senate confirms John Ring and he assumes a seat on the Board, we expect many more pro-employer rulings from the NLRB. Employers also can take this opportunity to revisit some of the policies in their handbook, particularly social media policies, which had been informed by the prior Board’s positions. We will continue to keep you informed about developments under the National Labor Relations Act.

© Copyright 2019 Sills Cummis & Gross P.C.

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About this Author

David I. Rosen, Sills Cummis Gross, Wrongful Dismissal Lawyer, Labor Arbitration Attorney
Member

David I. Rosen has practiced labor and employment law on behalf of management clients since 1977. He handles employment litigation in the federal and state courts, before administrative agencies and through arbitration and mediation, and has broad experience with wrongful dismissal and employment discrimination claims, having successfully defended employers following jury and bench trials. His litigation experience extends to the enforcement and defense of restrictive covenants, NLRB unfair labor practice trials and appellate advocacy. Mr. Rosen also represents employers in labor...

(973) 643-5558
Galit Kierkut, Employment Litigation Attorney, Sills Cummis Gross, Social Media Matters Lawyer
Member

Galit Kierkut concentrates her practice on employment litigation and counseling. She conducts human resources audits, performs management and employee training in all areas, including sexual harassment, social media and electronic communications use, and counsels clients regarding compliance with state and federal employment laws, including discrimination laws, the Fair Labor Standards Act (FLSA), family and medical leave, and the Worker Adjustment and Retraining Notification (WARN) Act. She also reviews and drafts employee handbooks, social media policies and employment contracts, including restrictive covenants and severance agreements. Her employment litigation practice is primarily focused on resolving claims in the areas of discrimination, sexual harassment, restrictive covenants, whistleblowing and employment contract disputes in state and federal courts and before the Department of Labor and the Equal Employment Opportunity Commission (EEOC).

973-643-5896
Charles Kaplan, Sills Cummis Gross, Labor Employment Attorney, Affirmative Action Matters Lawyer
Member

Charles H. Kaplan is a Member of the Sills Cummis & Gross Employment and Labor Practice Group and is resident in the Firm’s New York Office.  Mr. Kaplan represents employers in federal and state trial and appellate courts, as well as before enforcement agencies, including the U.S. Equal Employment Opportunity Commission, the National Labor Relations Board, the Office of Federal Contract Compliance Programs of the U.S. Department of Labor, the New York State Division of Human Rights, the New York State Department of Labor and the New York City Commission on Human Rights.

Mr....

212-500-1563