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National Labor Relations Board Member Nancy Schiffer’s term expires December 16, 2014. With the mid-term elections out of the way and given the uncertainty of how a Republican-controlled Congress next year could affect the Board majority’s agenda, it is expected that the NLRB will issue decisions addressing significant issues as well as finalize the NLRB’s new “quickie” election rules before her term expires next month.

Cases of ‘Significance or High Interest’

In four cases this year, the Board invited the public to file amicus briefs in cases “of significance or high interest.” At least two of the four will have a wide-ranging impact, while one of them is more ‘academic’ than the others both legally and practically.

Joint Employer Status

A decision in Browning-Ferris Industries could issue any day addressing the NLRB’s standard for joint employers under the National Labor Relations Act. In May 2014, the Board invited interested parties to submit amicus briefs in Browning-Ferris, a case involving the routine application of the Board’s decades-old standard for determining whether two or more businesses may be found to be “joint employers.” Under the existing standard, two or more employers must “share or co-determine matters governing essential terms and conditions of employment.” Predictably, unions and their allies submitted briefs proposing that a much broader standard be adopted. The NLRB’s General Counsel’s brief argued that the Board should abandon its current joint employer standard in favor of an amorphous “totality of the circumstances” test. The briefing period for amici closed on June 26, 2014, and the case appears to be ripe for decision.

The impact of the Board’s decision in Browning-Ferris will have far-reaching effects. For example, the General Counsel, already operating under his preferred joint employer standard, has stated that he is ready to issue a complaint against McDonald’s asserting that it is a joint employer with one of its franchisees. Franchisors are not the only ones at risk. Employers, like the employer in Browning-Ferris, who regularly use contract labor could face joint liability for unfair labor practices committed by their subcontractor, could lose the ability to decide whether they want to do business with a union or non-union contractor, and could lose protections against secondary boycotts by a contractor’s employees.

Employee Access to Employer Communication Systems

A decision could also be imminent in Purple Communications, Inc., a case addressing whether employees should have access to employer email systems for union activities. Currently, the Board’s Bush-era Register Guard decision governs these decisions, holding that employers can enforce a blanket-ban on non-work-related use of its email system so long as the ban is non-discriminatory and consistently applied. The General Counsel’s position, summed up in its brief filed in Purple Communications, is that employees should “have a statutory right to use [the employer’s email] systems for Section 7 purposes during nonwork time, absent a showing of special circumstances relating to the employer’s need to maintain production and discipline.” Such a holding would not only reverse the Register Guard holding, but would depart from decades of Board precedent holding that employees have no right to use employer equipment for union organizing activities.

In May, 2014, the Board invited amicus briefs. On June 24, 2014, the House Subcommittee on Health, Employment, Labor and Pensions (HELP) conducted a hearing concerning the National Labor Relations Board’s current agenda, including both the issue of employee access to employer email systems as well as the joint employer standard.

Briefing in Purple Communications concluded on July 3, 2014, and so it seemed that the issue was ripe for decision. However, in an apparent political side-step, it appears that the Board punted the issue until after the mid-term elections. On September 24, 2014, the Board issued a decision (Purple Communications, Inc., 361 NLRB No. 43 (2014)) finding sufficient unfair labor practices and objectionable conduct to order a re-run election, but opted not to decide the more controversial issue at that time:

consistent with our notice and invitation to file briefs issued on April 30, 2014, we sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.

Accordingly, the Board’s decision in September did not address Register Guard or Purple’s electronic communication policy on the merits, but many expect the Board to do so soon.

Deferral to Arbitration 

In February of this year, the Board solicited briefings on whether it should “continue, modify or abandon the Olin/Spielberg standard for deferral to arbitration awards” in Babcock & Wilcox Construction Inc., (Case No. 28-CA-022625). The existing standard has been good law for many years, but it recently came under attack from former Acting General Counsel Lafe Solomon.  The current General Counsel is also advocating for a new standard, which would place the burden of proof on the party seeking deferral to demonstrate that (1) the collective-bargaining agreement incorporates the statutory right, or the statutory issue was presented to the arbitrator, and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue.  Briefing on the issue has concluded, so a decision is expected in the coming months.

As we noted in 2011, if the Board adopts the General Counsel’s proposed standard, it will drastically change how the NLRB processes unfair labor practice cases where the underlying merits are subject to pending or past grievance and arbitration proceedings as the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met. Accordingly, Employers would have to adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.

Are Student Athletes Employees?

While affecting a small subset of private employers, the Northwestern University case presents interesting issues about when students are “employees” under the Act. In Northwestern, the Regional Director found that the university’s football players are not primarily students, and thus are “employees” under the Act and able to form a union. The players voted in a union election on April 25, but the ballots were impounded pending a decision by the Board on the university’s appeal of the Regional Director’s decision. The Board’s decision will not only address the status of football players under the Act, but likely also the continued viability of the Board’s 2004 decision in Brown University, holding that graduate students are not “employees” under the Act. Brown University reversed the Board’s 2000 decision in New York University holding for the first time that graduate assistants are “employees.” Briefing concluded on July 10, 2014.

The NLRB’s New “Quickie” Election Rules

After the Board’s 2011 efforts to adopt new rules designed to shorten the time between petitions and union elections were found to be procedurally defective, the Board announced in February 2014 that it was proposing virtually the same rules anew. Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board’s proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties’ ability to request review of a Regional Director’s decision prior to the election. The Board held a two-day public hearing on its proposed rules, and the public comment period closed in mid-April. While no final determination date has been announced by the NLRB, it is widely believed that the final rules will be issued by the end of the year.

Schiffer’s Replacement

The mid-term elections will likely have no impact on President Obama’s choice to replace Member Schiffer. In July President Obama nominated former recess appointee Sharon Block to the Board, whose recess appointment was ruled unconstitutional by the Supreme Court in June of this year. On September 17, 2014,  the Senate Health Education Labor and Pensions Committee (HELP) approved the President’s nomination. The HELP Committee split primarily on party lines, with 13 members approving her nomination and 9 members voting against it. However, the Senate majority has delayed bringing Block’s nomination to the Senate floor, presumably waiting until after the mid-term elections “given the political context of her nomination.” As explained by the Wall Street Journal, the Senate’s vote to eliminate filibustering of presidential nominees effectively hamstrings any Republican attempts to block her nomination from a vote during the “lame-duck” session. Presuming Block is confirmed by the full Senate, the Board will have a full panel of five members entering into 2015. Member Harry Johnson’s term expires next on August 27, 2015.