Type: Law Bulletins
Date: 02/14/2020

Making the NLRB Great Again (Part Four)

Since President Trump’s election, we have been tracking changes in the law under a National Labor Relations Board (NLRB or Board) controlled by Republican appointees. There were few significant developments in 2018. But 2019 was a year of enormous Board action, resulting in many positive changes for employers. This article will report on 2019’s significant developments and address other changes that could be coming in 2020.

The People

The Board normally consists of five members. Republicans maintained a 3-1 majority on the Board throughout most of 2019. In mid-December 2019, Democrat Lauren McFerran left the Board after her term expired, resulting in a 3-0 Republican majority. In late August 2020, Republican Marvin Kaplan’s term will expire, which will result in the Board losing a quorum unless at least one Board vacancy is filled by then. 

Significant Developments

  • Election Rules: On Dec. 13, the Board issued a final rule changing how union elections are processed. Responding to criticism that the old election rules imposed unreasonable deadlines on employers, the new rules significantly extend union election deadlines and make it easier for employers to prepare for elections. The rule is scheduled to take effect on Apr. 16, 2020.
  • Confidentiality in Investigations: In Apogee Retail, 368 NLRB No. 144 (Dec. 16, 2019), the Board overruled a 2015 Obama Board decision that required employers to prove on a case-by-case basis that confidentiality was necessary to the integrity of a workplace investigation. Under Apogee Retail, employers can once again generally require confidentiality during an ongoing investigation.
  • Dues Checkoff: In Valley Hosp. and Med. Ctr., 368 NLRB No. 139 (Dec. 16, 2019), the Board overruled a 2015 Obama Board decision that required employers to keep deducting union dues even after the collective bargaining agreement establishing the checkoff arrangement expired. The Board’s decision reinstated longstanding Board precedent that an employer’s obligation to check off union dues ends when the collective bargaining agreement containing the checkoff provision expires.
  • Email Systems: In Caesars Entertainment, 368 NLRB No. 143 (Dec. 17, 2019), the Board overruled a 2014 Obama Board decision that prohibited employers from restricting employee use of employer-provided email systems for union activity. Employers now have the right to restrict employee use of the employers’ email system during nonworking hours for nonbusiness purposes.
  • Arbitral Deferral: In last year’s NLRB update, we predicted the Trump Board would overrule the 2014 Obama Board decision that made it much harder to obtain deferral of unfair labor practice charges to arbitration. In United Parcel Service, Inc. 369 NLRB 1 (Dec. 23, 2019), the Board did so and reinstated longstanding Board precedent requiring deferral to arbitration in a much wider variety of cases.
  • Contract Coverage: In MV Transportation, 368 NLRB No. 66 (Sept. 10, 2019), the Board overruled longstanding Board law and made it much easier for employers to rely on their collective bargaining agreements to make changes without having to bargain with their unions. Under the old “clear and unmistakable waiver” standard, employers had to show — with extremely specific contract language — that the union waived its right to bargain over a particular issue. Under the new “contract coverage” standard, the Board will determine whether the employer’s unilateral action was within the scope of contractual language granting the employer the right to act unilaterally.
  • Employer Property Rights: Over the summer, the Board issued a series of decisions favoring employer property rights.
    • Public Spaces: In UPMC, 368 NLRB No. 2 (June 14, 2019), the Board overruled over 60 years of Board law prohibiting employers from removing non-employee union organizers from on-site public cafeterias or restaurants, even those engaging in promotional or organizational activities, as long as the organizers weren’t being “disruptive.” Under UPMC, employers may now prohibit non-employee union organizers access to public spaces at its facility for the purpose of soliciting employees or distributing literature even when the organizers’ activities are not disruptive.
    • Workers of On-Site Contractors: In Bexar County, 368 NLRB No. 46 (Aug. 23, 2019), the Board ruled that employers may deny off-duty employees of an on-site contractor access to the property to engage in union organizing activity unless (1) the employees work both regularly and exclusively on the property, and (2) the employer fails to show that the employees have one or more reasonable non-trespassory alternative means to communicate their message.
    • Parking Lots: In Kroger Mid-Atlantic, 368 NLRB No. 64 (Sept. 6, 2019), the Board ruled that employers may deny access to non-employees seeking to engage in protests on its property, while allowing non-employees access for charitable, civic and commercial activities that are not similar to protest activities. 
  • Joint Employer: In last year’s NLRB update, we reported on the chaotic state of the Board’s joint-employer standard. Nothing significant has changed from 2018. The controversial Obama Board decision in Browning-Ferris Ins. of Cal., 362 NLRB No. 186 (2015), remains the law. Under Browning-Ferris, an employer can be a joint employer even if it does not exercise any actual control over the employees of the other employer. In September 2018, the Board proposed a rule that would change the current standard and return to the previous longstanding standard requiring the employer’s exercise of actual control instead of potential control. Throughout 2019, the Board worked to review nearly 29,000 public comments and finalize the proposed rule. The final rule was originally scheduled to be published in December 2019, so it should be published soon. 

What’s Next?

  • As discussed above, we expect the Trump Board to issue its final rule on the new joint-employer standard in the near future. Litigation challenging the final rule is a virtual certainty.
  • We also expect the Board to publish other rules such as:  

    • Employee Free Choice: On Aug. 12, 2019, the Board proposed rulemaking designed to protect employees’ free choice as to whether to have union representation by changing current law. These include rules addressing (1) the “blocking charge” (currently allowing unions to block elections by filing an unfair labor practice charge before the vote occurs); (2) the “voluntary recognition bar” (currently prohibiting challenges to a union’s majority support for a “reasonable period of time” after an employer voluntarily recognizes a union); and (3) the Section 9(a) Recognition in Construction rule (currently allowing a construction union to establish a Section 9(a) relationship by relying on contract language alone without additional evidence of majority support).
    • Student/Employee Status: On Sept. 23, 2019, the Board proposed rulemaking that would exempt undergraduate and graduate students who perform services in exchange for financial compensation from the act’s definition of “employee.”
  • On Sept. 5, 2019, the Board invited submission of amicus briefs to address the circumstances under which profane language or sexually or racially offensive speech should lose the protection of the National Labor Relations Act. Current Board law makes it very difficult for employers to discipline employees if the offensive speech occurs in the course of other protected activity — like picketing.
  • As we have previously discussed, we expect the Trump Board to overrule other Obama Board decisions such as: (1) Total Sec. Mgmt. Ill. 1, LLC, 364 NLRB No. 106 (2016) (usually prevents employers from disciplining employees in the absence of a union contract without bargaining to impasse); and (2) American Baptist Home of the West, d/b/a/ Piedmont Gardens, 364 NLRB No. 13 (2016) (makes it risky for employers to use permanent replacements during economic strikes by finding that an intent to discourage future strikes is sufficient to violate the law).
  • An election! The 2020 presidential election will have a profound impact on the future direction of the Board.

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