The National Labor Relations Board (NLRB) recently issued the following decisions that are favorable to the employer community.

• On Dec. 14, in a 3-2 decision, the NLRB overruled the Board’s 2015 decision in Browning-Ferris Industries and returned to the previous joint employer standard. In its press release, the board states, “In all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. Accordingly, under the pre-Browning Ferris standard restored today, proof of indirect control, contractually reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint employer relationship.” 

• Also on Dec. 14, in a 3-2 decision, the NLRB overruled the Lutheran Heritage Village-Livonia case and the board’s decision establishes a new standard governing workplace rules, policies and employee handbooks.

• On Dec. 15, in a 3-2 decision, the NLRB overruled the decision in Specialty Healthcare, which allowed for the formation of so-called ‘micro’ bargaining units. According to its press release, the NLRB “reinstated the traditional community-of-interest standard for determining an appropriate bargaining unit in union representation cases. The National Labor Relations Act provides that the board must decide in each case whether the group of employees a union seeks to represent constitutes a unit that is “appropriate” for collective bargaining.”   

Note: NLRB Chairman Philip A. Miscimarra's term expired on Dec. 16. The board is currently locked in a 2-2 split until Miscimarra's replacement is confirmed by the full Senate. According to recent news report, President Donald Trump is close to nominating his replacement. 

On Dec. 14, the NLRB published a request for information (RFI) for public comment on the NLRB’s 2014 “ambush” election final rule (also known as Representation-Case Procedures), which overhauled the procedures for union representation by drastically shortening the amount of time between when a union files a representation petition and an election takes place.  

The board is seeking feedback on three questions:

1. Should the 2014 election rule be retained without change?
2. Should the 2014 election rule be retained with modifications? If so, what should be modified?
3. Should the 2014 election rule be rescinded? If so, should the board revert to the representation election regulations that were in effect prior to the 2014 election rule’s adoption, or should the board make changes to the prior representation election regulations? If the board should make changes to the prior representation election regulations, what should be changed?

Responses to the RFI must be received by the board on or before Feb. 12, 2018. Responses are limited to 25 pages. Visit the NLRB webpage for more information on how to submit comments. 

ABC will be submitting comments on the RFI. Members can contact Karen Livingston or Kelly Tyroler if they have any questions.