The micro-unit strategy abetted by the Obama-era NLRB just took another blow when the Board ruled against it in the recent Boeing case. The 2017 PCC Structurals case began to unravel the micro-unit strategy by restoring the Board’s prior standard for determining the appropriateness of a petitioned-for bargaining unit. In Boeing, the Board further clarified the required analysis for this determination, using a three-step process:
- Step One: Shared Interests Within the Petitioned-For Unit.
- Step Two: Shared Interests of Petitioned-For and Excluded Employees.
- Step Three: Special Considerations of Facility, Industry, or Employer Precedent.
Read here for details on how this played out in the Boeing case, which dismissed a proposed micro-unit of 178 employees out of the 2700 total production and maintenance employees at Boeing’s South Carolina plant. Although the issue of independent contractor status is far from resolved, a bit of good news was released by the NLRB. In Velox Express, the Board determined that independent contractor misclassification is not a stand-alone violation of the National Labor Relations Act. Social media policies received scrutiny again when CVS Health’s policies went under the microscope. Two of their policies were found to run afoul of the Section 7 rights. First, CVS required employees to identify themselves by their real name when they discussed the company and their work on social media. An advice memo released in the case stated, “The board has recognized that requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.” CVS also restricted employees from disclosing “employee information” on social media. In response, the advice memo stated, “While the employer has a legitimate business interest in keeping customers’ and employees’ personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes.” The Board just made it easier for an employer to make changes to the terms and conditions of employment without first receiving permission from the union. In MV Transportation, the Board adopted the “contract coverage” standard followed by the D.C., First and Seventh Circuits. If the collective bargaining agreement can be said to “cover” the change, the employer can act unilaterally. The Department of Labor has proposed reinstating the Form T-1, requiring more financial disclosure by unions. The reestablishment of the use of the form would block the use of trusts by unions to circumvent reporting requirements in the Labor-Management Reporting and Disclosure Act. As the recent UAW training center scandal indicates, the move couldn’t come at a better time. Two members of the NLRB have signaled that they are ready to reconsider an over 40-year precedent regarding employers’ off-duty employee access rules. The third condition of the 1976 Tri-County Medical Center ruling is problematic for employers because it does not even permit an employer to maintain a rule that allows an employee to return to the workplace for innocuous reasons, such as to pick up a paycheck. Board members Kaplan and Emanuel wrote a footnote in the recent Southern Bakeries decision that they were prepared to reconsider this third condition in “an appropriate case.” Lastly, the Board has also signaled it is ready to curb abusive and profane speech currently protected by the NLRA, and is requesting amicus briefs. Click here to read the notice and submit briefs.
