Merry Christmas from the National Labor Relations Board
Many companies and labor attorneys thought the General Counsel’s Memorandum issued on December 1, 2017 was the perfect “Merry Christmas” to companies hoping to see changes from national labor policy. The Memorandum was a nice stocking stuffer for many in and of itself, because, among other things, it rescinded various Obama-Era prosecutorial priorities intended to extend labor-friendly policies. Little did we know at the time, but the Board had already wrapped four Elmo-sized Christmas presents (decisions overturning several key Obama-Era precedents) and placed them under the Christmas tree.
The first two decisions, issued last Thursday, overruled two Obama-Era Board decisions. The
decisions scaled back the degree of scrutiny applied to the review of employer
conduct policies by allowing consideration of whether an employer’s stated reasons
for those policies are legitimate and reversed course on the expansive joint-employer
test developed under the Board’s 2015 decision in the Browning-Ferris case.
On Friday, the Board in Raytheon Network overturned a burdensome employer bargaining
requirement. In 2010, the Board held that before an employer could implement a unilateral
change after expiration of a collective bargaining agreement, it was required to
provide notice and an opportunity to bargain with unions even if the change was
consistent with the employers past practice, overruling years of precedent and drastically
expanding employer bargaining obligations. Raytheon
Network restores the prior rule, holding that a unilateral “change” did not
require notice and an opportunity to bargain when the change was similar in
kind and degree with an established past practice consisting of comparable
actions. This is particularly good news for employers in terms of annual
The Board also eradicated the often maligned “micro-unit”
concept on Friday in PCC Structurals, Inc. Micro-units became possible after a 2011
decision that made it much more difficult for employers to challenge proposed
bargaining units and easier for unions to organize small segments of a business.
PCC Structurals, Inc. reversed
course, returned the Board to the traditional community-of-interest standard, and
jettisoned the newly created requirement that, to defeat the proposed bargaining
unit, employers must show that the excluded employees shared an “overwhelming”
community of interest with the proposed bargaining unit.
It was certainly predictable that Acting
Chairman Miscimarra would want to reverse some of the decisions he’s railed
against in dissents for years before his term expired December 16th.
It was good of him and his fellow new Board members to leave these decisions as
gifts for employers under the Christmas tree.