Several NLRB decisions at the end of the year reversed several Obama-era Board actions, returning issues to previous long-standing interpretations of the National Labor Relations Act. Among them were:
- Apogee Retail addressed employer confidentiality during investigations, restoring standards on par with other Federal agencies
- Caesars Entertainment overturned Purple Communications, and returned the control of a company’s email system back to the company, allowing the restriction of email systems, as long as Section 7 rights are not singled out
- Valley Hospital determined that union dues checkoff ends at the expiration of a collective bargaining agreement
The Board also signaled an intent to overturn Obama-era rules on union access to employer property, returning reasonable restrictions that had existed for almost 40 years.
The long anticipated Joint Employer Rule was handed down in mid-January. In the final rule, the department provides a four-factor balancing test for determining FLSA joint employer status in situations where an employee performs work for one employer that simultaneously benefits another entity or individual. The balancing test examines whether the potential joint employer:
- Hires or fires the employee;
- Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
- Determines the employee’s rate and method of payment; and
- Maintains the employee’s employment records.
The final rule will be effective 60 days after its publication on January 16th.
The Board signaled in an unpublished case that it intends to adopt a new test which would expand what constitutes effective recommendation of discipline, widening the definition of who qualifies as a supervisor. Bloomsburg Care and Rehabilitation Center reviewed the authority of Licensed Practical Nurses (LPNs), holding that they were not supervisors. The Board agreed with a Regional Director in this case, while disagreeing with the test used, and citing the Third Circuit’s 2017 holding in NLRB v. New Vista Nursing and Rehabilitation, suggesting a more useful test. All that’s needed now is an appropriate case to come before the board.
In United Parcel Service, Inc., the Board reversed yet another Obama-era Board ruling - the 2014 Babcock & Wilcox Construction Co, Inc. – and reinstated the legal standard for deferring to the arbitration process to the prior standard.
In the largest monetary remedy in the history of the NLRB, CNN has agreed to pay $76 million in backpay to benefit over 300 individuals. It took 17 years from the time CNN severed a contract with unionized Team Video Services in 2003, for the case to wind its way through an administrative law judge, the NLRB, the D.C. Circuit Court of Appeals, to finally be resolved through the Board’s Alternative Dispute Resolution program.