For the previous 8 years, employers had to get used to a “new normal”. The Obama-era NLRB issued a number of rulings turning established precedents on their collective head. In particular, many employers felt the previous Board had started putting them at the mercy of unions. Then last month, the NLRB issued decisions that once again scale back the role of the union in many workplaces. What are these cases, and what were the issues? We’ll get answers to those questions as well as the one we always ask here: What does that mean for employers? So, don’t go away, read on…
I know I said we’d discuss two cases and we will, I promise. Before we do that, however, I just want to give you a little background. On December 1, 2017, the NLRB got a new General Counsel. I know that in itself is not necessarily heart-stopping news for most of you, but bear with me. This new General Counsel, Peter Robb, issued a memo to all NLRB Regional Directors, in which he asked them to submit to the Division of Advice, “cases involving significant legal issues”, including “cases over the last eight years that overruled precedent and involved one or more dissents” where he (i.e. Mr. Robb) “might want to offer the Board an alternative analysis”. OK, see where I’m going now? Yep, it looks like the tide has started to turn. That same memo referred to 3 cases: Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery (the “joint employer” standard, overruled in Hy-Brand Industrial Contractors, Ltd.) which I wrote about here two weeks ago; Lutheran Heritage (discussing the standard for evaluating work rules and prohibiting the use of cameras or recording overruled in Boeing) I wrote about that case here last week; and E.I. Dupont de Nemours, one of the two cases we’re about to discuss.
What’s my point, then? I do have one, really. Last year we got a new President, who is giving us a new NLRB, and we have a new NLRB General Counsel, who sent very clear signals to the NLRB and to employers that there’s a new –or what I call an old-new–sheriff in town. OK, now let’s look at these next two cases (and feel free to review my previous two posts when you have time) and you’ll see how things are changing (back).
Raytheon Network Centric Systems overturned E.I. Dupont de Nemours (Dupont) and reversed an administrative law judge’s ruling on the issue of unilateral changes by an employer to employees’ health benefits. The changes in question were consistent with 12 years of past practices. Under Dupont, employers had to first notify unions and provide them with an opportunity to bargain over changes–even when those changes were consistent with past practices, if: a) those past practices were carried out pursuant to a management-rights clause in an expired collective bargaining agreement; or b) if the actions involved employer discretion. The Board in Raytheon said that Dupont was not consistent with a commonsense reading of the requirement under NLRA Section 8(a)(5) requiring employers to bargain in good faith with unions over certain changes. In particular the Board characterized the Dupont holding as “distorting the long-understood, commonsense understanding of what constitutes a “change,” and a contradiction to well-established Board and court precedent.” ( To some that’s another way of saying “That’s silly.”) Now under Raytheon, employers once again may, make changes consistent with past practices, without first having to bargain, regardless of whether the CBA has expired or the changes involved employer discretion.
Next, PCC Structurals reversed the standard established in Specialty Healthcare, under which employers had to show that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit. In other words, Specialty Healthcare allowed the formation of micro-units, i.e. small, separate groups that could become bargaining units–and thereby increase a union’s presence and sphere of influence in the workplace. Prior to Specialty Healthcare, such micro-units were not deemed to be appropriate bargaining units and could create the risk of repetitious bargaining and more frequent strikes. As with the other cases we have been looking at over the last 2-3 weeks, PCC Structurals restores the pre-Obama-era ruling (which is Park Manor Care Center, 305 NLRB 872 (1991). Why did it do that? The more concise –and smart-alek –answer is because we have a new Board reflecting the views of a new(er) President.
Let’s rephrase the question, then. What was the Board’s reasoning? Here it is: the Board has a statutory responsibility to make “appropriate bargaining unit” decisions “and not base such units solely on union organization”. The ruling in Specialty Healthcare, according to the Board, detracted from that responsibility. The Board stated that “there are sound policy reasons for returning to the traditional community-of-interest standard that the Board has applied throughout most of its history, which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an ‘overwhelming’ community of interests [as Specialty Healthcare required]. ”
So I think we can see what these individual rulings mean for employers, but can we make a general inference that the tide has turned back in favor of employers? Perhaps. The General Counsel’s memo also mentions other cases that it believes should be considered for “alternative analysis”, suggesting that we can expect more pro-employer rulings in the near future. As with anything, however, time will tell…
Well, we’ll end here for now. Let’s meet up here again next week for other news in employment law. See you then!
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