Trump NLRB Shakes Up the Labor World in Striking Down Numerous Obama Board Decisions

The National Labor Relations Board (“NLRB” or the “Board”) recently issued a series of decisions that overturn Obama-era rules and fundamentally change employers’ obligations under the National Labor Relations Act (the “Act”).  We discuss those decisions in full here, but this is a quick summary:
 

• Joint employers – No longer will mere possession of theoretical control over terms and conditions of a workplace be sufficient to find joint-employer status; actual exercise of such authority is again required.
   
• “Micro-units” – The Board reversed Specialty Healthcare to eliminate the favored status of “micro-units” and return to the traditional standard for community of interest in determining an appropriate bargaining unit.


• “Quickie” elections – The Obama Board’s rule that truncated the time between a union filing an election petition and the vote – which left employers scrambling to educate workers about the benefits of remaining non-union – may be revised or rescinded, according to a Request for Information from the Trump Board.
   
• Employer policies – Employers can again require civility in the workplace; the Board will now review employer policies by balancing the nature and extent of a policy’s potential impact on rights protected by the Act, with the legitimate justifications offered by the employer.
   
• Dynamic status quo – An employer’s past practice with regard to terms and conditions of employment may again justify its unilateral action.
   
• NLRB settlements – The NLRB rejected the Obama Board’s “same relief” standard for approving Board settlements and returned to the “reasonableness” standard, which should make it easier for employers who find themselves trying to settle unfair labor practice charges with a recalcitrant union or General Counsel on the other side.
   
• General Counsel priorities – The new NLRB General Counsel issued a memorandum that foreshadowed changes yet to come in numerous areas, including use of employer email systems to engage in Section 7 activities, work stoppages, off-duty employee access to property, successorship, and dues checkoff, just to name a few.

We expect more changes in the labor law landscape in 2018.  As always, keep apprised of developments at our blog, www.StoelRivesWorldofEmployment.com, or contact your Stoel Rives labor attorney for more information.