UPDATED: JULY 29, 2014
1. Aftermath of Noel Canning
The Supreme Court determined in late June of this year that President Obama’s purported recess appointments to the National Labor Relations Board were unconstitutional. Hundreds, or potentially even thousands, of Board decisions issued by the improperly-constituted Board could be affected by the Court’s ruling. Administrative actions taken by the Board and the former Acting General Counsel, Lafe Solomon, could also be affected by the decision. Interestingly, Member Craig Becker, whose term in office was also effectuated via recess appointment, was deemed to be properly-appointed in a recent decision by an Administrative Law Judge, so presumably cases issued during his tenure are unaffected.
2. 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. The Board held a public hearing, and the public comment period closed in mid-April. While no date for final determination has been announced, a decision will likely come by the end of 2014.
3. Micro Units
This week’s decision in Macy’s, Inc., finding appropriate a bargaining unit consisting only of cosmetics and fragrance employees represents a significant break from the Board’s long-standing practice of upholding only store-wide units in the retail industry. It certainly reveals that the Board’s 2011 decision in Specialty Healthcare is alive and well. Another micro-unit case — Bergdorf Goodman, Case No. 2-RC-076954– is pending at this time. While that case also arose in the retail industry, application of the Macy’s/Specialty Healthcare framework to the facts of that case may shed additional light on how micro-unit cases will be approached in all industries.
UPDATE: The Board issued its decision in Bergdorf Goodman on July 28, 2014. Please see our post summarizing the decision, and continue to monitor the blog as we will provide additional updates and analysis of micro unit issues.
4. Employee Access to Employer Communication Systems
In May, 2014, the Board invited amicus briefs in the Purple Communications case, with an eye toward creating special rules for employee 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 the case 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. 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 the issue of employee access to employer email systems. Briefing in Purple Communications has concluded, and thus the case is ripe for decision.
5. Joint Employer Standard
In May 2014, the Board invited interested parties to submit amicus briefs in Browning-Ferris Industries, 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.
6. Deferral to Arbitration
Back 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.” The existing standard has been good law for many years, but has recently come 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 and labor watchers expect a ruling in the coming months.
7. Persuader Rules
The much-anticipated and long-delayed Department of Labor rule narrowing drastically the scope of the “advice exception” to the so-called persuader regulations in the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) remains a very significant issue to be watched.
8. Appointment of Sharon Block
The term of Board Member Nancy Schiffer, one of three Democrats on the five-member Board, expires December 16, 2014. President Obama has announced that he intends to appoint Democrat Sharon Block to replace Member Schiffer. Ms. Block was one of the attempted recess appointments invalidated by the Supreme Court in Noel Canning. If Ms. Block’s appointment is confirmed by the Senate, the Democrats will maintain the existing 3-2 majority on the Board.
9. Successor Employer Obligations
In 2011, the Board overturned existing precedent and held that, where a new employer is determined to be a successor employer after a sale or merger, no challenge to a union’s representational status may be raised for a “reasonable” time after the transaction. NLRB General Counsel Richard Griffin has indicated that additional changes may be in the works impacting successor employers. Under current law, even though a successor employer has an obligation to bargain with the union representing the predecessor’s employees, the successor may, in most instances, unilaterally determine the initial terms and conditions of employment for those employees. On February 25, 2014, General Counsel Griffin wrote that his “initiatives or policy concerns” included “[c]ases involving the issue of whether a perfectly clear successor should have an obligation to bargain with the union before setting initial terms of employment.” He is expected to request the Board to change the existing law in this area.
10. Rights of Non-Union Employees
The Board and General Counsel Griffin are focused on addressing the rights of non-union employees. The Board has already issued a number of decisions affecting non-union employees such as cases involving employer work rules, rules against gossip, confidentiality rules, disciplining employees’ for insubordinate conduct while engaged in protected activity, as well as others. Meanwhile, General Counsel Griffin has identified multiple initiatives directed at non-union employees for which it wants to give guidance to the Regions. For example, he has publicly stated that one of his major focuses for the next term will be eliminating workplace rules stating that employees cannot discuss wages. In addition, he has directed that matters involving the following issues are to be submitted to the General Counsel’s Division of Advice:
- the applicability of Weingarten principles in non-unionized settings;
- at-will” provisions in employer handbooks
- the rights of contractor employees, who work on another employer’s property, to have access to the premises to communicate with co-workers or the public; and
- mandatory arbitration agreements with a class action prohibition.
While affecting a small subset of private employers, the Northwestern University case presents interesting issues about when students are “employees” under the National Labor Relations 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 also likley 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, so the case is now ready for a decision.