NLRB Issues Four Decisions In Five Days

• Published date: 22 December 2022
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Shipman & Goodwin LLP
• Author: Mr Jarad M. Lucan and Sarah N. Niemiroski

As the holiday season approaches, the National Labor Relations Board ("NLRB") issued four pro-labor decisions of varying impact. One decision maintains the status quo; two decisions return to an Obama-era standard, and the fourth creates an entirely new remedy for unfair labor practice cases. Each case will be addressed in turn below.

Maintaining the Status Quo: When Employee Interviews Are Lawful

In Sunbelt Rentals, Inc., the NLRB opted to maintain the long-standing bright-line standard used by employers when questioning employees in preparation for an unfair labor practice hearing. The NLRB stands by the Johnnie's Poultry standard, arguing that it balances the employer's right to defend itself against labor law violations with the employee's right to be free from coercive questioning.

The NLRB's decision to maintain the Johnnie's Poultry standard is in direct contrast with five circuit courts, which have declined to apply the standard. For example, the Second Circuit has instead applied a totality of the circumstances test. See Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964).

While the standard has existed since 1964, below is a refresher on an employer's best practices. When an employer questions an employee about an unfair labor practice, the employer should ensure the following:

• Participation of the employee is voluntary;
• The employee knows why he or she is being questioned;
• The employee is assured there will be no retaliation;
• The questions must occur "in a context free from hostility to union organization;
• The questions must not be coercive
• The questions must be limited in scope, and not seek to learn the employee's opinion; and
• The questions must not interfere with the employee's statutory rights.

Return to Past Standard: When Micro Units Are Permitted

The second decision, American Steel Construction, returns to the Obama-era standard for approving smaller bargaining units ("micro units"). In 2017, the NLRB adopted a new test for determining whether a petitioned for-unit is distinct enough. Under the 2017 test, the union had to show that the proposed bargaining unit had "meaningfully distinct interests" related to collective bargaining that outweighed existing similarities.

On December 14, the NLRB rejected the 2017 test and revived the old standard. Now, the NLRB will consider whether the proposed unit shares a "community of interest," whether the group can be easily identified, and whether the division is "sufficiently distinct" from other...