In Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019),  the NLRB adopted a new framework for determining a union’s representative status once an employer has made a lawful anticipatory withdrawal of recognition based on disaffection evidence that the union has lost its majority status. Specifically, under Johnson Controls, a union seeking to demonstrate that it has reacquired majority status must do so in a secret ballot election conducted by the Board, rather than in an unfair labor practice proceeding. 
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The Board’s recent decision in Merck, Sharp, & Dohme Corp., 367 NLRB No. 122 (May 7, 2019)  highlights the differences that can arise as a result of the collective bargaining process in the terms and conditions of employment for employers with a divided workforce of non-union and union-represented employees.  In Merck, the Board majority reversed the Administrative Law Judge’s ruling that the employer had violated Section 8(a)(3) and (1) by offering a new, one-time paid holiday, “Appreciation Day” to all of its non-union employees to the exclusion of its union-represented employees. 
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As anticipated and previously reported, the Republican-controlled Board is overturning Obama-era rulings. For example, in a recent decision, SuperShuttle Inc. DFW, Inc. (16-RC-010963), the National Labor Relations Board affirmed the Board’s adherence to the traditional common-law agency test.  This decision overrules the NLRB’s 2014 Decision, FedEx Home Delivery, 361 NLRB No. 65, which had modified the NLRB’s long-standing test for independent contractor status.
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On April 16, newly confirmed member John Ring was sworn in as the fifth member and Chairman of the National Labor Relations Board, establishing a Republican-controlled Board.   While all has been relatively quiet with regard to rulings from the Board,  we will likely see a rise in activity now that the NLRB (with a  newly-minted majority) is poised to roll back some of the Obama-era rulings.
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