Recently, in Browning-Ferris Indus. of Cal., the National Labor Relations Board continued to expand its reach and once again altered decades old law in favor of labor unions, this time by making it easier for unions to hold multiple businesses responsible for bargaining with a single group of workers over employment conditions and terms. The decision has potentially far-reaching implications for companies that enter into staffing arrangements with third parties, including franchisors, who now may have legal obligations to bargain with unions where they never before did.
Author: James J. La Rocca
Last week, the National Labor Relations Board (NLRB) issued its long-awaited decision in Northwestern University, a case involving an attempt by scholarship football players to unionize under the National Labor Relations Act. About a year-and-a-half ago, in response to the university’s attempt to dismiss a union election petition filed on behalf of the players, a regional director decided that the students were statutory employees who could unionize. The university challenged the regional director’s decision, which set the stage for the Board’s decision.
On April 14, 2015, the National Labor Relations Board’s “quickie” election rule took effect (despite pending lawsuits challenging the legality of the rule). Earlier this month, the Board’s general counsel issued a 36-page memorandum to provide guidance on the new rule, which we summarize in some detail below in an effort to help employers navigate these new waters. The memorandum serves as a reminder that non-union businesses should consider implementing a labor relations strategy now so they can effectively, lawfully, and quickly respond to a notice of petition for election if they receive one under the new rule. An in-depth discussion of the general counsel’s memorandum is provided. The highlights are as follows:
As previously discussed on the Employment Law Alert, the National Labor Relations Board has taken several pro-union actions and issued many pro-union decisions over the last few years that impact union and non-union businesses alike, which recently include issuing the latest “quickie” election rule and increasing protections afforded to union-related communications made through companies’ e-mail systems. In MikLin Enterprises, Inc., d/b/a Jimmy John’s, the Board rendered another pro-union decision, a decision which serves to remind all employers to be mindful of the NLRB when considering employee discipline for disloyalty when the allegedly disloyal acts relate to employee dissatisfaction with working conditions.
The National Labor Relations Board’s General Counsel recently issued a memorandum providing guidance regarding the amount of deference the Board should afford arbitrations and settlements resolving unfair labor practice (ULP) allegations under sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act (NLRA). These sections prohibit interference with employees’ rights to engage in protected concerted activities (8(a)(1)) and discrimination against employees for union affiliation (8(a)(3)). The General Counsel’s memorandum was issued to provide guidance in light of the NLRB’s recent decision in Babcock & Wilcox Constr. Co. — a decision that altered decades’ old law by giving the Board greater discretion (1) to initially decide these types of ULP allegations, which had previously been subject to arbitration in the first instance, and (2) to review arbitration decisions concerning such ULP charges. Companies that are negotiating collective bargaining agreements or have such agreements in place and that prefer to arbitrate ULP claims rather than litigate them before the NLRB, should carefully review the General’s Counsel’s memorandum—as should companies settling ULP allegations, as the memorandum deals with settlements as well.
The United States Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.
On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.
Did you know that college football players are not “primarily students”? Well, not if the students are football players on regimented schedules, who receive grant-in-aid scholarships to play football from which their school profits, according to a Regional Director at the National Labor Relations Board. In a decision issued yesterday, the Regional Director concluded that Northwestern University football players who receive scholarships are statutory employees under the National Labor Relations Act, and, therefore, directed an election for the players to decide whether to unionize in light of a petition a union recently filed to represent them. The Regional Director relied upon the common law definition of an employee in rendering his decision, finding that: the school’s interest in the students initially stems from their football talents; letters the University sends them offering scholarships to play football (called tenders) are contracts; the school controls the players through rules and regimented workout and playing schedules; and the scholarships the players receive are compensation that cover living expenses. The Regional Director distinguished the case from Board precedent finding that graduate students are not statutory employees, by reasoning that football is unrelated to the students’ academics unlike the case involving the graduate students.
As if the groundhog’s recent proclamation of six more weeks of winter were not bad enough, the National Labor Relations Board announced yesterday that it again is proposing a rule that could expedite the union election process. The proposed “quickie” election rule is identical to a rule the Board proposed in June 2011 and (once again) is open to a 60-day public comment period. The Board will consider comments to the prior rule in addition to those it receives by April 7, 2014. Replies to the comments are due a week later on April 14, 2014.
Yesterday, the National Labor Relations Board announced it would not challenge two decisions by United States Courts of Appeals that struck down a Board rule requiring private sector employers to post a notice about employee rights to unionize. As previously reported, the NLRB issued the rule over two years ago, but decided to postpone it indefinitely due to legal challenges by business groups. Yesterday’s announcement signifies the Board’s acceptance that the rule is unenforceable, and accordingly, private sector employers have no legal obligation to post the notice.