In a busy season for the agency, the National Labor Relations Board (NLRB) just issued three more decisions.

In the case of Sunbelt Rentals, Inc., the NLRB decided to let stand the bright-line standard used by employers when they question employees to prepare for an unfair labor practice hearing.

The NLRB said it supports the existing Johnnie’s Poultry standard — which has existed since 1964 — saying that it balances an employee’s right to be free from coercive questioning with an employer’s right to defend itself against labor law violations.

The NLRB’s decision disagrees with five federal appeals courts, which have all declined to apply the standard in various cases.

Given the confirmation of the standard, an employer who is questioning an employee about an unfair labor practice should be sure that:

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

When are micro units permitted?

In American Steel Construction, the NLRB brought back the standard put in place during the Obama administration related to approving smaller bargaining units known as micro units.

In 2017, the NLRB adopted a new test for determining whether a petitioned for-unit is distinct enough. Under that test, the union was required to show that the proposed bargaining unit had “meaningfully distinct interests” related to collective bargaining that outweighed existing similarities.

In the new decision, the NLRB rejected the 2017 test and returned to the old standard.

The NLRB will now consider the following in these situations:

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 employees excluded from the micro-unit.

If an employer contests the creation of the unit, the employer must demonstrate that there is an “overwhelming community of interest” between the workers in the proposed unit and excluded workers.

When can property owners exclude contract workers?

In the third decision, the NLRB returned to the 2011 standard from the case New York, New York Hotel & Casino to cover times when contract workers and unions are allowed to access physical property.

In 2019, the NLRB held that an employer could stop contractors from distributing leaflets outside its facility.

Under that ruling, property owners could prohibit contract workers if they did not “regularly and exclusively” work on the property and if the owner was able to show that the workers had a “reasonably nontrespassory alternative” for communicating their message.

A federal appeals court in D.C. overturned the standard two years later, arguing that it was arbitrary and internally inconsistent.

Based on the latest NLRB ruling, property owners can only stop off-duty contract workers from protesting if they can prove that the activity would significantly interfere with the use of the property, or for another legitimate business reason.