NLRB Rulings Return Pre-Obama Standards to Some Labor Relations Issues
Author: Robert S. Teachout, XpertHR Legal Editor
December 26, 2017
In its last week with a Republican majority, the National Labor Relations Board (NLRB) reversed several labor relations rulings issued by the prior Democrat-led Board. Just as with the decision to overrule the 2015 Browning-Ferris decision, the NLRB's rulings on union organizing, bargaining, settlements and workplace rules restore standards that had been followed for decades.
The key rulings issued involved:
Proposed Settlement Terms - In UPMC and its subsidiary, UPMC Presbyterian Shadyside, the NLRB ruled that an administrative law judge may accept a respondent's proposed settlement, even over the objection of the General Counsel and the charging party, if the proposed terms are deemed reasonable. The ruling reversed an Obama-era board ruling that held proposed settlement terms could be accepted in such circumstances only if they provided a full remedy for all violations alleged in the complaint.
Workplace Civility Rules - Under the prior Lutheran Heights standard, a facially neutral workplace rule would be found unlawful if it could be "reasonably construed" by an employee to prohibit the exercise of NLRA rights. Using that standard, the previous Democrat-majority Board found many workplace "civility" rules to infringe on employees' "mutual aid and protection" rights.
In Boeing, the Board said it will instead use a standard based on whether a facially neutral policy, rule or handbook provision, when "reasonably interpreted," would potentially interfere with the exercise of NLRA rights. The Board will weigh the nature and extent of any potential impact on workers' rights against any legitimate employer justifications for needing the rule.
Changes That Trigger Duty to Bargain - In its Raytheon Company ruling, the Board overturned a 2016 decision that an employer must provide a union representing its employees with notice and an opportunity to bargain before implementing certain unilateral changes. The prior ruling held that the duty to bargain was triggered when a change occurred after a collective bargaining agreement has expired or if the disputed actions involved employer discretion. The Board held that such employer actions are not a change requiring bargaining if they are "similar in kind and degree with an established past practice consisting of comparable unilateral actions."
Union Micro-Organizing Efforts Suffer a Setback - In a blow to union efforts to organize "micro-units" of employees within an organization, the NLRB reinstated the traditional community-of-interest standard (a similarity of wages, benefits, working conditions, skills, and supervision) for determining an appropriate bargaining unit in union representation cases. The traditional standard tends to result in a larger group and requires a union to win more votes to win recognition.
The ruling in PCC Structurals, Inc. cast aside the "overwhelming community of interest" established by the Obama-era Board in Specialty Healthcare & Rehabilitation Center of Mobile. In that decision, the Board held that to challenge the exclusion of employees from a proposed bargaining, an employer was required to prove that the employees shared an "overwhelming" community of interest with the original group of employees in the proposed unit before the Board would find a petitioned-for bargaining unit inappropriate. That is, the common interests between the groups must "overlap almost completely.
And That's Not All…
In addition to these rulings, the Board also signaled its interest in reversing the 2014 "quickie election" rules by issuing a request for information asking for public input on the changes. The rules dramatically reduced the timeframe between the filing of a union election petition to the holding of an election from an average of approximately six weeks to an average of 23 days.
All of these actions took place in the final week of NLRB Chairman Phillip Miscimarra's term, which ended on December 16, 2017. With Miscimarra's return to private life, the Board's Republican 3-2 majority also ends. President Donald J. Trump has named Board Member Marvin E. Kaplan as the new Chairman. However, Miscimarra's seat still needs to be filled. The Board currently includes Democratic Board Members Mark Gaston Pearce and Lauren McFerran, as well as Republicans William J. Emanuel and Kaplan. The Board will remain split until a new appointee by President Trump is confirmed.