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Publications | November 25, 2019
4 minute read

The Pendulum Swings: A Look at Recent NLRB Decisions

The National Labor Relations Board (NLRB or Board) shifts its policies depending on the party in the White House. The NLRB’s decisions tend to be more pro-employee/pro-union with a Democratic president and relatively more employer-friendly with a Republican president.

Over the past two years, the “Trump Board” overturned or scaled back several “Obama Board” positions. The Trump Board also took aim at long-standing Board precedents. This trend has picked up speed over the past few months. 

For example, in three recent cases, the Board favored employers. These decisions demonstrate the high regard the Board has for property rights. 

    These decisions should make employers feel more confident that they can regulate behavior of non-employees on their property. These decisions may also suggest how the Board will decide future cases involving employee use of employer property, such as using employer email systems for union-organizing activities.

    Speaking of union organizing, in The Boeing Company, 368 NLRB No. 67 (Sept. 9, 2019), the Trump Board continued the shift away from pro-union policies. Specifically, the Board held that a group of two job types was not large enough to conduct a union election. The Board relied on its 2017 decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017), which held that a group of workers can form their own union when they have a “community of interest” and their concerns are “sufficiently distinct” from those of coworkers. In Boeing, the Board clarified PCC Structurals by applying a three-part test. That test considers: (1) whether the members of the proposed unit share a community of interest; (2) whether the employees excluded from the unit have distinct interests that outweigh similarities with unit members; and (3) guidelines the Board established for unit configurations in specific industries.

    In M.V. Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019), the Board held that an employer could change employment terms without first bargaining with its employees’ union. The Board held it would no longer apply the “clear and unmistakable waiver” standard to determine whether an employer’s unilateral change to employment terms violates a collective bargaining agreement. Under the “clear and unmistakable waiver” standard, the Board would find a violation unless the agreement unequivocally and specifically referred to the type of employer action at issue. This test was almost impossible to meet. Now, the Board will employ the less stringent “contract coverage” test. Under the contract coverage test, the Board determines if the change was within the scope of the agreement language granting the employer the right to act unilaterally. If it was, the Board will find no violation. If the agreement does not cover the action, the Board will find a violation except in two cases. There will be no violation if the employer demonstrates the union waived its right to bargain over the change. There will also be no violation if the employer’s act is justified by a compelling business reason, such as a dire financial emergency.  

    These are just some of the Board’s recent decisions. The Board has also proposed new rules to address various issues, instead of handling them on a case-by-case basis. With the upcoming presidential election, it’s a safe bet we will see many more significant developments, so stay tuned. In the meantime, if you face potential organizing or bargaining challenges at your facility, your Warner + labor attorney can help.