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Conservative NLRB Rushing to Roll Back Worker’s Rights

January 11th, 2018

By Bruce M. Ludwig

Republican NLRB Rushing to Roll Back Worker's RightsAs soon as the conservative Republicans constituted a majority of the members of the National Labor Relations Board, because of President Trump’s appointments, this new majority rushed to reverse important prior decisions in a blatant effort to roll back worker and Union rights.

In a 3-2 decision, the Republican majority overruled a prior NLRB decision from 2004, Lutheran Heritage Village, which governed whether neutral sounding workplace rules unlawfully interfered with the rights of employees to engage in protected activity. Under the prior case, employers violated the law by maintaining workplace rules which could be “reasonably construed” by an employee to chill the exercise of their rights. For example, under Lutheran Heritage Village, a work rule which prohibited the disclosure of confidential information, vaguely described, was unlawful because it could be “reasonably construed” to encompass disclosure of nonpublic information such as employees’ wages, benefits and other conditions of employment. Employees have the right under the National Labor Relations Act to protest their working conditions and to share information with others about those complaints. Under the new test announced by the Republican majority in The Boeing Company, workers will be more vulnerable to arbitrary discipline based on violation of company work rules.

Another setback for worker rights occurred when the NLRB, again in a 3-2 decision, overruled its prior decision in Browning-Ferris Industries. That case set standards to determine when two employers would be considered joint for purposes of either unfair labor practices or for defining a bargaining unit. It recognized the amount of control that companies had over employees provided by a subcontractor or hired by a franchisee. Given the widespread use of subcontractors and franchisees to artificially shield the subcontracting company or the franchisor, Browning-Ferris was particularly important in protecting workers rights and recognizing the reality in the workplace. The new decision in Hy-Brand Industrial Contractors overruled that precedent and established a higher degree of proof before a joint employer relationship would be found. This reversal was startling because it was unnecessary to decide the actual case before the Board and because no party in that case had argued for the reversal of Browning-Ferris. Nevertheless, the Republican majority, pursuing its political agenda, overruled this important precedent.

In another decision, the Republican majority overruled Specialty Healthcare, which had established a standard for determining the appropriate bargaining unit for representation cases. Under Specialty Healthcare, which had been unanimously approved by the appellate courts, a Union could petition for election among a particular subset of employees based upon community of interest factors. This was important given the tactic of employers pushing for a larger unit in order to make the vote for the Union more difficult. In its new decision, PCC Structurals, Inc., the Board has made it more difficult for Unions to organize.

Finally, in yet another 3-2 decision the new Board issued a ruling, weakening restrictions on an employer when making unilateral changes in conditions of employment. Prior caselaw in E.I. Du Pont De Nemours mandated that an employer bargain with the Union prior to implementing a change in past practices, after a contract expired, if those past practices were created under the management rights clause of the expired contract or involved substantial employer discretion. In Raytheon Network Centric Systems, the Board overruled that prior rule and held that employers do not have to bargain with the Union before making changes to such things as healthcare benefits that it claimed were consistent with past practice.

While this onslaught by the new Republican majority will limit employee rights and hamper Union organizing, we encourage our clients to contact the labor law professionals at Willig, Williams & Davidson to determine how best to navigate in this new hostile environment.

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