Between September 26, 2017, when for the first time in nearly a decade Republicans controlled the majority at the National Labor Relations Board (NLRB), and December 16, 2017, when Chairman Philip Miscimarra's term expired and that majority temporarily ended, the Board issued several decisions with a big impact on employers. Below is a summary of the practical takeaways from a few of these new rulings.

The Boeing Company (Dec. 14, 2017) – As always, employer policies cannot infringe on the protected concerted activities of employees under Section 7 of the National Labor Relations Act (NLRA). Under this ruling, the Board will now consider a challenged rule's potential impact on NLRA rights, then balance that potential impact against the employer's legitimate justifications for the rule.

  • Review handbooks and policies to determine whether, as written (not as applied), they could potentially chill employees' Section 7 rights.
  • Consider the legitimate justifications for those rules, prepare to articulate them, and consider including the reasons in the text of the rule, so that management and employees will understand the rule and the reasoning behind it.
  • If there is a legitimate justification, consider litigating any unfair labor practice charges that challenge facially neutral policies.

Hy-Brand Industrial Contractors, Ltd. (Dec. 14, 2017) – A joint-employment determination once again requires proof that the putative employer (often the user of contract labor services) actually and directly exercised joint control over essential employment terms for the employees at issue.

  • Do not assume that this ruling will protect employers from a joint-employment determination if their management teams have significant control over how contract labor employees do their jobs. For example, if the only difference between their employees and contract labor employees is their payroll, employers are still likely at risk.
  • Review contract labor agreement provisions. Pay particular attention to indemnification and duty to defend and hold harmless language to make sure it protects the companies in the relationship, so that if joint employment arises, both parties understand whose obligation it is to cover associated costs.

PCC Structurals, Inc. (Dec. 15, 2017) – The NLRB will expand a proposed bargaining unit to include employees who share a sufficient (not overwhelming) community of interest to warrant their inclusion for bargaining.

  • Employers with a currently active case before an NLRB Region or the Board itself should consider seeking reconsideration of any adverse bargaining unit determination.
  • More petitioned-for units will be contested through representation hearing procedures, possibly leading to longer time periods between petitions and elections.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.