Two New & Important NLRB Decisions!

December 16, 2017

 

The NLRB just issued two important decisions which are important for employer-rights.

 

In Boeing (365 NLRB 154), it jettisoned the Lutheran Heritage standard for evaluating a facially neutral employer rule (whether an employee would "reasonably construe" the rule to prohibit Section 7 activity). Instead, the Board will now consider (i) the nature and extent of the potential impact on NLRA rights and (ii) the legitimate justifications associated with the rule. The Board will conduct this evaluation to strike the "proper balance" between business justifications and potential invasion of employee NLRA rights. The Board also outlined 3 categories (valid rules, rules warranting individualized scrutiny, and unlawful rules) it will use in future cases to categorize certain types of rules and provide better guidance in this area.

 

In Hy-Brand (365 NLRB 156), the Board overturned the Browning-Ferris standard for finding joint employment by multiple entities (if one entity "reserved" joint control of the other, had indirect control, or exercised "limited and routine" control). The Board held that in all future and pending cases entities it would restore use of the prior standard, finding companies were joint employers under the NLRA if they "exercised joint control over essential employment terms of another entity's employees (rather than merely having reserved the right to exercise control)," and the control exercised was "direct and immediate (rather than indirect)." The Board clarified that joint employer status "will not result from control that is limited and routine." This is a substantial narrowing and clarification compared to the prior Browning-Ferris standard.

 

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