ILMA Compoundings March 2018 - 39

WASHINGTON LANDSCAPE

Key Developments
at the NLRB
By Daniel Bryant

J

ust before the calendar flipped
to 2018, the National Labor
Relations Board (NLRB) was
particularly active, issuing two
significant decisions and publishing
an information request in the Federal
Register.
EMPLOYER HANDBOOK POLICIES
The NLRB issued a decision in December 2017 in The Boeing Company that
affects employer handbook policies and
procedures, overturning its controversial precedent in Lutheran Heritage.
Lutheran Heritage required administrative law judges to go through a
three-pronged standard to determine
whether an employer's handbook
policies violated the National Labor
Relations Act (NLRA). The functional result was to render any potential
workplace rule as unlawful if an
employee may have construed it to
restrict a protected right.
In Boeing, the NLRB stated that
when interpreting a facially neutral
handbook policy in the future, it
would evaluate the "nature and extent
of the potential impact on NLRA
rights and legitimate justifications
associated with the rule." The board
then applies the test and will conclude whether a policy fits into one
of three categories: those policies
that are lawful, those that necessitate
a case-by-base inquiry to determine
whether they are permissible, or those
that are unlawful. The decision overall
will likely make it easier for employers
to establish and enforce reasonable
workplace rules and restrictions.
JOINT EMPLOYER STANDARD
The NLRB published a decision
before the end of 2017 in Hy-Brand
Industrial Contractors Ltd. and Brandt

Construction Co. that overturned the
board's controversial "joint-employer"
Browning-Ferris precedent.
Under the old joint employer
standard, a business could be considered a joint employer if they directly
co-determined essential terms and
conditions of employment that had
a significant impact on issues related to the employment relationship,
such as hiring and firing. In the
Browning-Ferris decision, the NLRB
created a lower threshold to establish
"joint-employer" status, expanding
the threshold to cover those businesses
that exercised indirect authority or
control over essential terms and conditions of employment.
In Hy-Brand Industrial Contractors
Ltd. and Brandt Construction Co.,
the NLRB returned to the direct,
immediate exercise test to determine
whether a business may be considered
a joint-employer. The return to the
direct and immediate control test
should restore certainty to employers, including ILMA members, who
should be able to once again decipher
the dividing line between employees
and independent contractors.
UNION ELECTION RULE
The NLRB published a request for
information (RFI) in December
2017, soliciting public comment on
the controversial union election rules
(ER) implemented during the Obama
administration.
The ER, which became effective
April 14, 2015, reduced the amount
of time between when a group files
a union representation petition and
when a union election is held. In
some cases, it provides employers with
11 days to engage legal counsel and

respond to the organizing efforts by
speaking with employees as "voters."
While the rule does not say when an
election must be held after the submission of a petition, it does direct NLRB
regional directors to schedule the election "at the earliest date practicable."
In the RFI, the NLRB is seeking
comments on whether the ER should
be retained "as is," retained with modifications or rescinded. The NLRB
will review responsive comments, then
determine whether changes should be
made to the ER later in 2018.
UNCERTAINTY MOVING FORWARD
The NLRB's December activity was
welcome news to employers; however,
the current pace of board actions to
reverse a number of Obama-era
decisions is likely to be slow for
the time being. Republican Philip
Miscimarra's departure from the
NLRB on Dec. 16 leaves it at a 2-2
Republican-to-Democrat deadlock.
While the White House has named a
replacement for Miscimarra's seat, the
Senate confirmation process will take time.
In the meantime, one item we will be
watching is new NLRB member William
Emanuel's pledge to Sen. Elizabeth
Warren (D-Mass.) during his confirmation to follow a broadly defined term
for recusal from cases involving over
160 companies. Such recusal could
effectively create a de facto 2-1 Democrat board in certain instances until
President Donald Trump's nominee is
confirmed and joins the board.
Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be
reached at 202-386-7670 or dbryant@bmalaw.net.

39



Table of Contents for the Digital Edition of ILMA Compoundings March 2018

LETTER FROM THE CEO
INSIDE ILMA
WHAT’S COMING UP
INDUSTRY RUNDOWN
In the Know
International Insight
Market Report
IS A JOINT VENTURE THE ANSWER?
WHERE’S YOUR INVENTORY?
SPEAKING YOUR LANGUAGE
BUSINESS HUB
COUNSEL COMPOUND
WASHINGTON LANDSCAPE
IN NETWORK
Member Connections
Cross Connections
PORTRAIT
ILMA Compoundings March 2018 - Cover1
ILMA Compoundings March 2018 - Cover2
ILMA Compoundings March 2018 - 1
ILMA Compoundings March 2018 - 2
ILMA Compoundings March 2018 - LETTER FROM THE CEO
ILMA Compoundings March 2018 - INSIDE ILMA
ILMA Compoundings March 2018 - 5
ILMA Compoundings March 2018 - 6
ILMA Compoundings March 2018 - 7
ILMA Compoundings March 2018 - 8
ILMA Compoundings March 2018 - 9
ILMA Compoundings March 2018 - WHAT’S COMING UP
ILMA Compoundings March 2018 - 11
ILMA Compoundings March 2018 - INDUSTRY RUNDOWN
ILMA Compoundings March 2018 - In the Know
ILMA Compoundings March 2018 - International Insight
ILMA Compoundings March 2018 - 15
ILMA Compoundings March 2018 - 16
ILMA Compoundings March 2018 - 17
ILMA Compoundings March 2018 - Market Report
ILMA Compoundings March 2018 - 19
ILMA Compoundings March 2018 - IS A JOINT VENTURE THE ANSWER?
ILMA Compoundings March 2018 - 21
ILMA Compoundings March 2018 - 22
ILMA Compoundings March 2018 - 23
ILMA Compoundings March 2018 - WHERE’S YOUR INVENTORY?
ILMA Compoundings March 2018 - 25
ILMA Compoundings March 2018 - 26
ILMA Compoundings March 2018 - 27
ILMA Compoundings March 2018 - 28
ILMA Compoundings March 2018 - 29
ILMA Compoundings March 2018 - SPEAKING YOUR LANGUAGE
ILMA Compoundings March 2018 - 31
ILMA Compoundings March 2018 - 32
ILMA Compoundings March 2018 - 33
ILMA Compoundings March 2018 - BUSINESS HUB
ILMA Compoundings March 2018 - 35
ILMA Compoundings March 2018 - COUNSEL COMPOUND
ILMA Compoundings March 2018 - 37
ILMA Compoundings March 2018 - 38
ILMA Compoundings March 2018 - WASHINGTON LANDSCAPE
ILMA Compoundings March 2018 - Member Connections
ILMA Compoundings March 2018 - 41
ILMA Compoundings March 2018 - Cross Connections
ILMA Compoundings March 2018 - 43
ILMA Compoundings March 2018 - PORTRAIT
ILMA Compoundings March 2018 - Cover3
ILMA Compoundings March 2018 - Cover4
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