In the days leading to the expiration of National Labor Relations Board Chairman Philip Miscimarra’s term this past December, and with the timing of a Republican majority on the Board uncertain, the Board overturned some of its most controversial Obama-era policies and decisions. This month’s column discusses those recent significant reversals, including the Board’s rulings on joint employer relationships, the standard for determining whether workplace policies applicable to represented and unrepresented employees violate the National Labor Relations Act (NLRA), an employer’s obligation to bargain prior to implementing changes consistent with past practice, and the ability of unions to organize so-called micro-units.

Joint Employers

In Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (2017), the Board ruled 3-2 to reverse the controversial joint employer test articulated by the Board just two years earlier in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (BFI Test). Under the BFI Test, a finding of joint employer status under the NLRA required only that an entity have indirect control, or the right to assert control (even if never exercised), over essential terms and conditions of employment of another entity’s employees.