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Is National Labor Relations Board at Turning Point?
Sunday, December 25, 2016

The National Labor Relations Board (“Board”) has been quite active in the waning days of the Obama administration. The Board issued a number of decisions addressing key issues in the second half of President Obama’s final year in office. While the lasting impact of some or all of these decisions in the wake of Donald Trump’s election is presently uncertain, it is almost certain that the Board’s Democratic majority under the Obama administration will not survive, and that President-elect Trump’s appointments will give rise to a Republican majority in the near future. Indeed, two of the five seats on the Board are presently open, and with the terms of both Member Philip Miscimarra, who is a Republican, and General Counsel Richard Griffin set to expire in 2017, President-elect Trump will soon have the opportunity to use his appointment powers to change drastically both the composition of the Board and its litigation and enforcement priorities. It can be expected that a new Board, with a Republican majority, will likely reexamine decisions of the Obama Board on a wide range of issues, including the Board’s decisions that found class action waivers and requirements that employees arbitrate (rather than seek relief in the courts for wage and hour and similar claims) to be unenforceable, and that redefined the standards for finding joint-employer relationships, as well as other decisions seen as “pro-union” or anti-employer.

This year, the Board issued decisions that affected employers in several key areas.

Joint Employers

In July 2016, the Board issued Miller & Anderson, 362 NLRB No. 39 (July 11, 2016), a decision that expanded the already-relaxed joint-employer standard adopted by the Board in its August 2015 decision in Browning Ferris Industries. The Board made clear that it will now hold elections and require bargaining in “petitioned-for units combining solely and jointly employed workers of a single user employer,” in those cases in which a union asks for such a mixed employer unit, so long as the Board finds the jointly and solely employed workers “share a community of interest” under the Board’s “traditional community of interest factors for determining unit appropriateness.” Moreover, the Board overturned its 2004 decision in Oakwood Care Center, 343 NLRB 659 and held that when a union petitions for a representation election in a unit that includes both “solely employed” and jointly employed employees of a single “user employer,” the Board will no longer require the consent of the employer or employers before directing such an election and certifying a union to represent such a unit.

The Board’s decision in Miller & Anderson can also be viewed as the next step in the progression that began with the Board’s change in its representation election rules, which permit quicker elections and representation proceedings and which deny employers their rights to both litigate critical unit and supervisory status issues prior to an election and to appeal a Regional Director’s direction of election before that election is conducted.

The Board’s Assistance to Union Organizing

The Board’s decision in Trustees of Columbia University, 364 NLRB No. 90 (Aug. 23, 2016), was part of a broader trend by the Board’s majority efforts to jump-start collective bargaining and union organizing and bring unions into new settings where they have not previously been found. In this case, the Board ruled that graduate students working as teaching assistants and research assistants were “employees” within the meaning of the National Labor Relations Act (“Act”) and, thus, have the right to join unions and engage in collective bargaining with the universities and colleges at which they study. This decision is yet another example of the Obama Board’s broad approach in examining the nature of the employer-employee relationship, not only in the context of joint employment and co-employment but also in new areas of the gig economy, where unions and employees are arguing that workers traditionally recognized to be independent contractors have been “misclassified” and that such misclassification is in and of itself an unfair labor practice.

The Board’s Aggressive Review of Employment Policies and Handbooks

Throughout 2016, the Board has continued its aggressive approach to reviewing, invalidating, and finding unlawful employment policies and other documents once viewed as standard by employers—class action waivers, separation agreements, workplace conduct, email use policies, and social media policies. In Chipotle Services LLC, 364 NLRB No. 72 (Aug. 18, 2016), the Board took aim at a social media policy maintained by Chipotle Services, LLC. In that case, the company asked one of its non-unionized employees to delete several tweets posted on his personal Twitter account, because they violated Chipotle’s Social Media Code of Conduct. The Board concluded that the company’s social media policy, which prohibited employees from spreading “incomplete, confidential, or inaccurate information” through their online activity, and also forbid employees from making “disparaging, false, misleading, harassing or discriminatory statements” regarding the company and its employees, suppliers, customers, competition, or investors,” violated the Act because it could reasonably be construed as restricting employees’ exercise of their Section 7 rights to engage in concerted activity.  

What Employers Should Do Now

The Board has continued to scrutinize employers’ policies and practices this year and has not hesitated to reverse prior precedent in order to accomplish its strategic initiatives. With the incoming administration, employers will have to take a wait-and-see approach to determine whether some (or all) of the Board’s inroads will be rolled back in 2017.

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