Republicans (temporarily) lost majority control of the National Labor Relations Board when Chairman Philip Miscimarra’s term expired on December 16, 2017. But not before they pulled off some 2017 NLRB fireworks!

Facing a 2-2 party split to begin 2018, Republican Members Marvin Kaplan and William Emanuel joined the outgoing Chairman in issuing pivotal rulings in the last days of his term. Here’s a quick summary of some of the most important 2017 NLRB policy shifts.

New Election Rules?

Not yet. But the road is paved.

On December 13, 2017, the NLRB issued a request for information from the public regarding the agency’s union election procedures. Specifically, the Board asked for information regarding the 2014 amendments to the rules. Those were promulgated by a Democrat-majority Board under President Obama, leading to what many have dubbed “quickie elections.”

The request for information itself does not change anything. However, it does strongly suggest a potential change in course. Once President Trump nominates and the Senate confirms a new Republican member to the NLRB, Members Kaplan, Emanuel, and their new colleague could take further action to revise the election rules. The result would likely be more time between filing of petitions and elections taking place.

Read here for more details on the request for information.

More Reasonable Restrictions on Employee Conduct

Under the previous administration, the NLRB said that employers could not have policies requiring employees to be “respectful”.

That was only illustrative of the extent to which the Obama Board objected to standard employment policies of the types long found in many employers’ employee handbooks.

The Obama NLRB also particularly enjoyed regulating comparatively new “Social Media” policies. Various Democrat-controlled panels routinely struck down policies, or at least portions of them, that seemed to most employers to be perfectly reasonable means of conducting business and avoiding undue attacks on companies from their own employees.

On December 14, 2017, the Miscimarra-chaired Board effectively reversed numerous Obama-era decisions by changing the legal test upon which they were decided.

A 2004 NLRB decision reasoned that even if a rule doesn’t “explicitly restrict” an employee right under the National Labor Relations Act, the rule may still be unlawful if employees would “reasonably construe the language” to restrict activity that the Act protects.

In a case involving Boeing, the 2017 NLRB (with both Democrats dissenting) has now rejected that standard and replaced it with a “balancing” test. Going forward the NLRB will now weigh “the nature and extent of the potential impact on NLRA rights” against “legitimate justifications associated with the rule.” (You can read the full decision here.)

The predictable impact of the new test will be greater protection of employers’ rights to maintain appropriate control over their business.

Relaxing the Joint Employer Doctrine

In 2015, the NLRB, over the objection of Miscimarra and fellow Republican Member Harry I. Johnson III, created a broad standard for determining when separate business entities simultaneously “employ” the same employees. In other words, when two different companies are “joint employers”. The critical question affects various issues under the National Labor Relations Act. These include union representation and liability for unfair labor practices.

In another December 14, 2017, 3-2 Board decision, the NLRB announced it was returning to an earlier test that “reflects a common-sense, practical understanding of the nature of contractual relationships in our modern economy”. The restored test will depend on which business(es) have “direct and immediate” control over terms and conditions of employment. It dismisses analysis of “indirect” factors that the Democrat majority introduced in 2015. (You can read the full decision here.)

Among other situations, this change in the joint employer doctrine will significantly affect franchised businesses. There are, for example, many NLRB cases contesting whether McDonald’s Corporation is a joint employer of its independent franchisees’ employees.

Eliminating Micro-Units

In 2011, the NLRB issued a ruling in Specialty-Healthcare that has permitted unions to organize smaller subsets of an employers’ workforce. Essentially, the Obama Board would accept most any bargaining unit containing employees who share some “community of interest”. The employer had the burden of proving that additional employees share an “overwhelming community of interest” in order to enlarge the scope of a proposed bargaining unit.

The new line of cases beginning in 2011 benefited unions seeking to organize, because they did not need to win the support of as many employees within a workplace. Indeed, they had greater latitude to pursue bargaining units that happened to coincide with employees who favored union representation. Pockets of co-workers who opposed the union could be ignored.

On December 15, 2017, however, the Miscimarra-led Republican majority reinstated the NLRB’s traditional community of interest standard in determining what bargaining units are appropriate. Under this restored test, the Board will evaluate “whether the employees in a petitioned-for group share a community of interest sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.” (You can read the full decision here.)

2017 NLRB Makes Way for 2018

President Trump will have the opportunity to appoint his third NLRB member by the beginning of his second year in office. That is somewhat remarkable considering that Board members hold 5-year terms.

There’s no obvious reason to doubt that the newest Board member will agree with these 2017 NLRB reversals. He will likely join Members Kaplan and Emmanuel in reversing other Obama-era decisions, giving employers more latitude to manage their workplaces.