The Practical NLRB Advisor: A Hy-Brand Can of Worms

By Ogletree, Deakins; Nash, Smoak et al. | Labor Law Journal, Summer 2018 | Go to article overview

The Practical NLRB Advisor: A Hy-Brand Can of Worms


Ogletree, Deakins, Nash, Smoak, Stewart, P. C., Labor Law Journal


Brian in Brief

Just like economic markets hate uncertainty, so too does any regulated community. Unfortunately, as this issue of the Practical NLRB Advisor amply illustrates, uncertainty-and plenty of it-has become the stock-in-trade for the NLRB.

The blame for this rests almost entirely with the Obama Board, which seized upon, and often created, every opportunity to reverse, upend, or modify extant law-all in a transparent effort to achieve a particular set of ideological goals. History teaches us that such excesses eventually spawn correction. Indeed, we are currently witnessing that phenomenon at the NLRB as, for example, a new Board majority attempts to return to a rational and traditional notion of the jointemployer doctrine or to save employer handbooks from the tortured parsings of bureaucratic logomachists. Such change, however, is never linear. It is, more often than not, messy, chaotic, and time-consuming. The problem is, of course, that in the regulatory context, that kind of messiness deprives all stakeholders of certainty.

There is a more than decent argument that the apparently perpetual state of flux at the NLRB is the direct result of its statutory architecture-an imperfect marriage of the executive and the judicial, of policy and law. Whatever the reason, the result is the same. To invert an old adage, the more things remain the same, the more they change. In this issue, as always, the Advisor tries to help the reader navigate the churn.

Sincerely,

Brian E. Hayes

Co-Chair, Traditional Labor Relations Practice Group

Ogletree Deakins

Acme Co. was eager to revisit its labor supplier agreement with WeHelpU, Inc., which expired December 31, 2017. Acme has been contracting with the staffing agency for nearly a decade to provide additional workers when cyclical demands required the manufacturer to ramp up production for two- or three-week periods, several times a year. Acme had always insisted that its contract with WeHelpU required WeHelpU employees to comply with the rules and conduct set forth in Acme's employee handbook, and also to require WeHelpU employees to obtain advance approval from Acme management before working overtime. Acme never had to invoke either provision over the course of its relationship with WeHelpU, but the presence of these contract terms provided reassurance to Acme that it could fully manage its facility operations and rein in its labor costs.

In an abundance of caution, however, in 2016, the legal department revised the company's longstanding agreement with WeHelpU. Acme's outside counsel had advised the company to review its labor supplier contracts and to remove any provisions that might suggest that the company is "exercising control"over WeHelpU's workers. The reason, the company's attorney explained, was "a horrible decision by the Labor Board" that put Acme at risk of being legally liable, along with WeHelpU, for its contingent workers. As a result, Acme eliminated these and other provisions from its WeHelpU contracts in 2016 and 2017.

Acme management was relieved to get a call from their attorney in mid-December, informing them that the National Labor Relations Board had reversed the "joint-employer case" and that the company could confidently restore the contractual protections when it renewed its agreement with WeHelpU. The parties inked the new deal in early January, bringing Acme management considerable peace ofmind-at least, that is, until the end of February, when outside counsel called again . . .

Back to Browning-Ferris

December 14, 2017, brought welcome news: The National Labor Relations Board (NLRB) had reversed its 2015 Browning-Ferris Industries of California, Inc. decision. The controversial Obama-era "joint-employer" ruling was a sharp departure from the long-standing test for determining whether, under the National Labor Relations Act (NLRA), two separate entities could be deemed a joint employer of a group ofemployees. …

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