For a few brief months in late 2017, the five-member National Labor Relations Board (NLRB) operated at full-strength and with a Republican majority for the first time in a decade. The “new” NLRB’s case outcomes were consequential, and included reversals of several perceived pro-labor decisions from the prior Obama NLRB. Then, Chairman Miscimarra’s term expired in December, and the NLRB settled back into a 2-2 equipoise. Looking ahead, employers will likely not wait long for another shift in the NLRB’s political make-up, as President Trump’s latest nominee, Republican John Ring, awaits confirmation by the Senate. Winston & Strawn Partners Bill Miossi and Derek Barella review the NLRB’s late 2017 flurry of activity and likely issues and agenda items to be taken up by the Trump NLRB in 2018.

1. What to Expect from a Trump NLRB
February 21, 2018

2. Today’s eLunch Presenters
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Derek Barella
Partner, Labor & Employment Practice
Chicago
dbarella@winston.com
Bill Miossi
Partner, Labor & Employment Practice
Washington, D.C.
wmiossi@winston.com

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4. Fast Facts – NLRA
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5. NLRA – Key Provisions
• Section 7 – Protects employees’ rights to:
• “Form, join, or assist labor organizations”
• “Bargain collectively through representatives of their own choosing”
• “Engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection”
• “Refrain from any or all such activities”
• Section 8(a) – Prohibits employer conduct that interferes with
Section 7 rights
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6. Fast Facts – NLRA
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7. Fast Facts – NLRA
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8. If the law hasn’t changed…
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9. NLRB
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10. NLRB
• Five-Member Board
• Members serve staggered terms
• Appointed by President and confirmed by Senate
• Traditionally, majority three members from President’s party
• General Counsel also Presidential appointee
• Board exercises adjudicatory and rulemaking authority
• Adjudicatory authority is more frequent process to set policy
• Typically decides cases by three-member panel decisions
• Historically, no stare decisis
• Cases almost always involve some balancing of rights
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11. Example – Weingarten in Non-Union Settings
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12. Fast Facts – Obama NLRB
• Expansive view of protected, concerted activity
• Outreach to non-represented employees
• Reverses 91 precedents, comprising more than 4,000 years
of NLRB case law
• Micro-bargaining units
• New joint employer standard
• Combined single/joint employer units
• Assault on handbooks
• Employer email for union organizing
• Arbitration agreements
• New speedy election rules
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13. Enter the Trump Board
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• Mark Pearce (D), April 2010 to Present
• Lauren McFerran (D), Dec. 2014 to Present
• Philip Miscimarra (R), Aug. 2013 to Dec. 16, 2017
• Marvin Kaplan (R), Aug. 10, 2017 to Present
• William Emanuel (R), Sept. 26, 2017 to Present
• John Ring (R), Nominated Jan. 15, 2018
• GC Richard F. Griffin Jr., Nov. 4, 2013 to Nov. 4, 2017
• GC Peter B. Robb, Nov. 17, 2017 to Present

14. Joint Employer Standard
• Issue: When do two or more employers “share or
codetermine” essential terms and conditions of employment?
• BFI Indus. (2015)
• Indirect control can be enough
• E.g., third-party firm raises wages based on contractual increases
• E.g., scheduling of workflow controls third-party scheduling
• Potential control can be enough, depending upon:
• Reserved contractual rights, even if unexercised
• Core vs. non-core nature of the work
• Integration of the work
• Economic commercial leverage in the relationship
• Technological oversight
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15. Joint Employer Standard
• Hy-Brand Industrial Contractors, Ltd. (Dec. 14, 2017)
• 3-2 decision
• Returns to pre-BFI standard
• Joint employment found only where two or more entities:
have exercised joint control over essential employment terms (rather than
merely having “reserved” the right to exercise control), the control must be
“direct and immediate” (rather than indirect), and joint-employer status will not
result from control that is “limited and routine”
• D.C. Circuit remands BFI case to NLRB
• Save Local Business Act (H.R. 3441)
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16. Micro-Units
• Specialty Healthcare (2011)
• A union’s petitioned-for bargaining unit should be upheld
• To overcome, employer must show another group shares an “overwhelming”
community of interests with the proposed bargaining unit
• PCC Structurals (Dec. 15, 2017)
• 3-2 decision
• Jettisons “overwhelming community of interest” standard
• Returns to traditional community of interest standard
• Employers should still expect some level of Board deference to union’s
petitioned-for unit
• But, on a relative scale, the traditional standard should limit
gerrymandering and fractured micro-units
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17. “Changes” Consistent with Past Practice
• E.I. du Pont de Nemours (2016)
• Actions consistent with established past practice constitute a “change”
• Employer must give notice/opportunity to bargain before implementation if:
• Past practice created under management rights clause in expired CBA, or
• Disputed actions involve employer discretion
• Raytheon Network Centric Systems (Dec. 15, 2017)
• 3-2 decision
• Return to standard dating to 1964
• Actions not a “change” if similar in kind/degree with past practice
• Principle applies regardless whether:
• CBA in effect when past practice created
• CBA in effect when disputed actions taken
• Disputed actions involve some degree of discretion 17

18. Employee Handbooks
• GC Griffin Report in 2014
• Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)
• Facially neutral work rule unlawful if:
• Rule promulgated in response to union or other Section 7 activity
• Rule actually applied to restrict exercise of Section 7 rights
• Employees would “reasonably construe” to prohibit Section 7 activity
• Act precludes even “well-intentioned rules”
• Mere maintenance of chilling rule is enough for violation
• Application of unlawful rule may create other violations
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19. Employee Handbooks
• The Boeing Company (Dec. 14, 2017)
• 3-2 decision
• With facially neutral work rule, Board will balance:
• Nature and extent of the potential impact on NLRA rights
-against-
• Legitimate justifications associated with the rule
• Balancing will result in categorizing rules:
• Category 1 rules always lawful
• Category 2 rules warrant individualized scrutiny
• Category 3 rules always unlawful
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20. Employee Handbooks
• Work rule at issue—Boeing’s restriction of the use of camera-
enabled devices on its property—is a lawful Category 1 rule
• Boeing’s security concerns outweigh the minor impact of the
rule on the exercise of NLRA rights
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21. 2014 Speedy Election Rules
• Mandatory SOP
• Pre-election hearings limited
• Most issues/challenges deferred to post-election
• Expanded employer production obligations (voter lists)
• 25-30 day scheduling parameter is eliminated
• Median days from petition to election
• FY2014 (and earlier): 38 days
• FY2015: 33 days
• FY2016: 23 days
• FY2017: 23 days
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22. Speedy Election Rules
• Dec. 14, 2017: Board (3-2) publishes Request for Information
in Fed. Register seeking public input on 2014 Election Rule
• Should the 2014 Election Rule be retained without change?
• Should the 2014 Election Rule be retained with modifications? If so,
what should be modified?
• Should the 2014 Election Rule be rescinded? If so, what should Board
revert to?
• Deadline for comments extended to March 19, 2018
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23. What’s Next?
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24. What’s Next?
• Prosecutorial priorities in flux
• GC Robb Memorandum re: Mandatory Submissions to Advice
• Speedy election rules
• Congressional Review Act not a vehicle to overturn
• Likely would require full Board and rulemaking process
• Potential case law changes
• Board listens to itself and USSC (but Circuit Courts may deny
enforcement)
• Additional case law changes at Board likely, but not imminent
• Will require “right” cases to percolate
• Conflicts may be a factor
• In the meantime, GC and ALJs will follow precedent
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25. Employer Email for Union Organizing
• Purple Commc’ns., Inc., 361 NLRB No. 126 (Dec. 11, 2014)
• Employee use of email for Section 7 communications during non-work
time must presumptively be allowed
• Only applies if employer gives employees access to email
• Employer can apply consistently enforced controls on system if
necessary to maintain production and discipline
• Maybe even a total ban if special circumstances exist, but we’re
skeptical
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26. Arbitration of Collective/Class Claims
• D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012)
• Found class waivers in mandatory arbitration agreement unlawful
• “Employees who join together to bring employment-related claims on a
classwide or collective basis in court or before an arbitrator are
exercising rights protected by Section 7”
• No conflict with FAA
• Not hostile to arbitration itself
• Arbitration agreements cannot deprive of substantive rights
• Arbitration agreements invalidated on same grounds as other contracts
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27. Arbitration of Collective/Class Claims
• Fifth Circuit disagrees, refuses enforcement
• Board failed to give proper weight to FAA, disfavoring arbitration
• Collective action is procedural right, not substantive
• ALJs and Board continue to follow D.R. Horton; expressly
affirm in Murphy Oil USA, 361 NLRB No. 72 (Oct. 28, 2014)
• Fifth Circuit again disagrees, so do Second Circuit, Fifth
Circuit, and Eighth Circuit, DCTs, and CA and NV Supreme
Courts
• Seventh and Ninth Circuits agree with Board
• USSC grants cert; cases consolidated
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28. Other Likely Targets for Reversal
• Obama Board decisions (all 3-2 or 3-1)
• Miller & Anderson, Inc. – combined single/joint employer bargaining
units do not require consent of either employer
• Total Security Mgt. Illinois – unlawful to discipline without bargaining
with newly certified union that has not yet negotiated a CBA
• Lincoln Lutheran of Racine – dues checkoff provision survives
expiration of CBA
• Piedmont Gardens – employer’s ability to withhold witness statements
from disclosure based on confidentiality concerns must be weighed
against union’s need for information
• Board invitation for briefs
• Velox Express – under what circumstances, if any, should Board deem
misclassification of supervisors as independent contractors a violation?
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30. Thank You.
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Derek Barella
Partner, Labor & Employment Practice
Chicago
dbarella@winston.com
Bill Miossi
Partner, Labor & Employment Practice
Washington, D.C.
wmiossi@winston.com