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.
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.
Honorable Mention
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.
Source: Labor
Relations Today
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