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New NLRB Upends Pro-Union Rulings

The National Labor Relations Board had an active Republican majority for only a matter of days in December, but they sure made the most of it.

In that time, they overturned some of the landmark decisions made by the Obama-era board that were designed to give unions the advantage over employers in a myriad of ways, but especially when it came to helping labor mount organizing campaigns among the employees at nonunion companies.

It wasn’t until last fall that President Trump got around to nominating and the Senate confirming two addition Republicans to the board, employer attorneys Marvin Kaplan and William Emanuel.

They joined Chairman Philip A. Miscimarra to create a 3-2 majority on the five-member NLRB.
Citing family reasons, Miscimarra had made clear he would leave the board when his term expired on Dec. 16, although he could have legally continued to serve after that date. The President has since named Kaplan to serve as NLRB chairman.

Joint Employers & Micro Unions

In the days before he left, the Republican majority acted to reverse several previous board decisions. The most important two dealt with establishing joint employer status for temp staffing firm employees, and allowing union organizers to carve out “micro unions” representing a handful of employees within a larger workforce.

The 2015 joint employer decision helped unions by allowing them to extend their jurisdiction over temp staffing agency workers who worked alongside permanent employees of the customer of the temp staffing firm, which created larger bargaining units.

An aspect of the ruling that outraged employers was that the board extended joint employer status to employers even when they did not exercise direct control over the temp workers.

Instead, joint employer status was granted even in cases where no control ease was exercised, but there was any possibility that the staffing firm customer could choose to do exert that control at some point in the future.

In December, the Republican majority reversed what it called a “vague and ill-defined standard,” and announced return to the NLRB’s prior test that existed before the 2015 decision.

To establish joint employer status the union must persuade the board that both employers exercise joint control – which does not include “limited and routine” control exercised by the temp staffing firm customer.

The Republican board also reversed the 2011 decision allowing unions to assemble bargaining units from a small minority of the total group of employees at a worksite, called “micro unions.”

Labor unions got a lot of mileage out of this novel ruling. Although the overall number of employees organized by the union might be small, it gave the union a foot in the door at locations where the overall workforce had voted against representation.

In one of the first cases, a union organized only the women handing out perfume samples at a large department store. In view of a string of cases involving retailers, it’s not surprising that the National Retail Federation cheered when the decision was overturned.

NRF Senior Vice President David French commented, “On the heels of the ruling to overturn the expansive joint employer standard, this is another excellent decision by the new NLRB.”

The new NLRB also is attacking the Obama-era board’s extension of the agency’s reach into nonunion employers’ operations by forcing rewrites of employee handbooks seen as discouraging discussion of wages and working conditions.

The new board’s first handbook decision now allows employers to ban employee use of cameras and other recording devices in the workplace.

The NLRB also has asked for public comment on possibly reversing the Obama-Era board’s 2014 decision allowing unions to mount “quickie” or ambush organizing elections, which has turned out to be quite helpful to unions (AA, 12-31-17, P. 4).

The rule shrunk the time between the union seeking an organizing vote and when it occurs from six weeks to an average of 23 days in 2017, making it hard for employers to mount effective campaigns. Also added were bureaucratic obligations that are easy to violate unintentionally. The

NLRB used technical violations by employers to throw out anti-union votes by a majority of employees and arbitrarily impose union representation.

Equally important were changes wrought by new NLRB General Counsel Peter B. Robb, who like board members, must be confirmed by the Senate and serves a term of four years, and who controls much of the board’s policy direction.

He already has told the NLRB’s 26 regional directors which cases he wants reviewed by the full board, and set new enforcement criteria (AA, 12-15-17, P. 4), including. ordering directors not to act in support of efforts to unionize student athletes.

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