Hunton Employment & Labor Perspectives

On April 16, newly confirmed member John Ring was sworn in as the fifth member and Chairman of the National Labor Relations Board, establishing a Republican-controlled Board.   While all has been relatively quiet with regard to rulings from the Board,  we will likely see a rise in activity now that the NLRB (with a  newly-minted majority) is poised to roll back some of the Obama-era rulings.

Based on NLRB GC Peter B. Robb’s December 2017 General Counsel (GC) Memorandum 18-02, a number of Board rulings are ripe for overruling. Among them are those that have expansively interpreted the National Labor Relations Act, and in some cases, overturned long-established precedent.

• Browning-Ferris Industries, 362 NLRB No. 186 (2015), pending sub nom. Browning-Ferris Indus. of Calif., Inc. v. NLRB, D.C. Cir., No. 16-1028, which overturned decades of precedent and dramatically expanded the scope and definition of  joint employer.  We previously reported that the Board had vacated its decision in Hy-Brand Industries, which had overruled Browning-Ferris Industries, and thus  returned the joint employer issue to square one.
• American Baptist Homes of the West d/b/a Piedmont Gardens, 362 NLRB 139 (June 26, 2015), on which we previously reported, forced employers to rethink how they conducted investigations by overruling the longstanding precedent protecting the confidentiality of employee witness statements, and adopted a new rule that balances the union’s need for the witness statement with the employer’s “legitimate and substantial confidentiality interests.”
•  Purple Communications, 361 NLRB No. 126 (2014), as we reported granted employees who used their employer’s email system as part of their job, the right to the email system for statutorily protected communications, such as union organizing.  Given the current accessibility virtually all employees have to social media and personal email and other messaging on their smart phones or tablets, the Purple Communications ruling may be seen as no longer necessary in view of today’s  technological and social practices. It would seem that the balancing test the Board utilized may now tip in favor of the employer’s property interests over the infringement of the employees' statutory rights under Section 7.

It remains to be seen in which cases the  General Counsel will argue for overruling – or the Board on its own initiative will overrule – these and other cases from the Obama era, bringing a new sense of balance to the agency’s rulings and enforcement policies.