Tuesday, September 18, 2018

There's a new sheriff in town at the NLRB

Last week was a big one at the National Labor Relations Board.

First, the Board announced its intent to modify its joint employer standard. This move, while not unexpected, is nevertheless significant. You can read all of the backstory on this issue here.

Suffice it to say that the Board intends to, yet again, require a putative joint employer to "possess and actually exercise substantial direct and immediate control over the employees' essential terms and conditions of employment in a manner that is not limited and routine."

Secondly, the Board ordered its field offices to start pursuing unfair labor practice charges against unions for "negligent" behavior. You can view a copy of the NLRB's internal directive (obtained by BNA) here.

What might qualify as "negligent" behavior by a union?

  • Losing, misplacing, or forgetting about an employee's grievance, unless the union had a reasonable procedure or system in place to track grievances that failed for an identifiable and clearly enunciated reason.
  • Failing to communicate decisions relating to grievances, or to respond to requests for information or documents from the grieving employee, unless the union has a reasonable excuse of meaningful explanation. 

This is a 180-turn in historical NLRB precedent, an likely to result in an increase in both unfair labor practice charges against unions and employee litigation against unions.

Let's not all get too excited about these changes. The NLRB's precedents tends to sway in the political breezes. One should expect, as we saw from 2009 - 2017, changes to these and other rules when the Democrats retake the White House. For now, however, employers should enjoy a much more business-friendly NLRB.

* Photo by Jakob Owens on Unsplash