With the clock ticking on NLRB Chair Philip Miscimarra’s December 16 departure and emboldened by a Republican majority, finally intact, a divided NLRB overruled, on December 14, its controversial 2015 decision in Browning-Ferris Industries, which expanded the scope of joint-employer liability, and returned to the Board’s pre-Browning-Ferris standard. In another 3-2 decision, the Board revised its standard for striking employer work rules and policies as impermissibly interfering with employees’ protected rights. These decisions are likely just two in a flurry of cases to come this week undoing Obama-era NLRB precedents.
Exercise of control. In a press release accompanying the decision in Hy-Brand Industrial Contractors, Ltd., the NLRB announced that in all future and pending cases, two or more entities will be deemed joint employers under the NLRA if there is proof that one entity actually 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 now restored, 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. The reinstated joint employer standard "adheres to the common law and is supported by the NLRA’s policy of promoting stability and predictability in bargaining relationships," according to the Board’s statement.
Applying the reinstated pre-Browning-Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and therefore jointly and severally liable for the unlawful discharges of seven striking employees.
New workplace rule standard. In The Boeing Co., another 3-2 decision, the Board overruled its Lutheran Heritage Village-Livonia standard governing whether facially neutral workplace rules, policies, and employee handbook provisions unlawfully interfere with the exercise of rights protected by the NLRA. Under Lutheran Heritage, in place since 2004, employers violate the Act by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be "reasonably construed" by an employee to prohibit the exercise of NLRA rights.
In place of the Lutheran Heritage "reasonably construe" standard, the Board established a new test: When evaluating a facially neutral policy, rule, or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (1) the nature and extent of the potential impact on NLRA rights; and (2) legitimate justifications associated with the rule. The Board also delineated three categories of rules, going forward, that it said will provide greater clarity and certainty to employees, employers, and unions.
Applying this new standard, the majority held that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. The rule potentially affected the exercise of NLRA rights, but the impact was comparatively slight and outweighed by important justifications, including national security concerns, the majority reasoned.
Members Pearce and McFerran dissented in both cases.
Source: Wolters Kluwer (Written by Lisa Milam-Perez, J.D.)