United States: Waiting For Godot, Or, In This Case, The NLRB

Last Updated: September 18 2018
Article by Monica Rodriguez and Jeffrey A. Berman

Seyfarth Synopsis: The National Labor Relations Board recently commenced an examination of the continued validity of a number of Obama Board actions. These include joint employer status, employee use of company email systems, and the "quickie election rules." This blog provides an overview of the Board's recent activities.

Just like Vladimir  and Estragon in Waiting for Godot, employers, unions, and employees are waiting for the National Labor Relations Board ("NLRB") to finalize the actions it recently commenced.

Here are the highlights of the Board's and General Counsel's recent activities.

New Proposed Joint Employer Standard

Just this week, on September 13, 2018, the Board commenced the rule making process with an eye toward changing the current joint employer standard. Unlike Board decisions, which are subject to change as the composition of the Board majority changes, Board-issued rules are much more permanent. For a more in depth discussion, see Seyfarth's management alert.

Review Of The Board's Ethics And Recusal Guidelines

The Board's ethics and recusal procedures recently received a fair amount of attention in connection with its joint employer decisions. In response, Chairman Ring announced that the Board would undertake a "comprehensive internal ethics and recusal review to ensure that the Agency has appropriate policies and procedures in place to ensure full compliance with all ethical obligations and recusal requirements."

On June 8, 2018, the Board formally announced that it would commence a review of its policies and procedures governing ethics and recusal requirements for Board Members. Eventually, the Board will issue a report, which should contain findings and establish guidelines for the future.

Changes To Bargaining Relationship Standards In The Construction Industry

Focusing its attention on the construction industry, the Board recently issued a request for amicus briefs on what the standard should be to determine the majority status of construction unions that have entered into pre-hire agreements, which are permitted under the Act.

Most bargaining relationships are governed by Section 9(a) of the Act, which requires the union to have the support of a majority of employees in the bargaining unit. However, Section 8(f) of the Act allows construction industry employers to extend recognition to unions without necessity of showing majority support.

In Staunton Fuel & Material, 335 NLRB 717 (2001), the Obama Board held that a construction union could continue its status as the majority representative merely by showing that the collective bargaining agreement unequivocally indicates that the union requested and was granted recognition as the majority or Section 9(a) representative of the unit employees, based on the union having shown, or having offered to show, evidence of its majority support.

The Board has asked for amicus briefs on whether it revisit Staunton.

The Board also has requested amicus brief on whether a construction industry employer that wants to challenge the extension of Section 9(a) recognition pursuant to a pre-hire agreement must do so within six months of the time that recognition was extended.

The briefing is due October 26, 2018.

Employee Use Of Employer Email Systems

As Seyfarth reported, shortly after becoming General Counsel, Peter Robb, issued a GC memo signaling that the Trump Board may review the issue of whether employees have the right to use employer email systems for protected activity. Last month, the Board invited interested parties to file briefs on the issue.

In 2014, the Obama Board held that employees who have been given access to their employer's email system for work-related purposes have a presumptive right to use that system, on nonworking time, for communications protected by the Act. In doing so, the Board overruled the previous rule, which held that employees did not have such a statutory right.

The Board now invites briefing to see if the Board should revert back to the old rule, or adhere to, modify, or overrule the old standard. The Board also wants to know that, if it reverts back to the old rule, should the Board carve out any exceptions. Because the case currently pending before the Board involves computer resources, not just email systems, the Board also seeks input regarding whether a different standard should apply to computer resources.

The initial deadline to submit briefing was September 5, 2018, but the Board extended the briefing period to October 5, 2018.

Misclassification Of Employees

The previous General Counsel, Richard Griffin, successfully argued to several Administrative Law Judges that misclassifying employees as independent contractors constitutes an unfair labor practice. In addition, Griffin's Assistant General Counsel issued an Advice Memorandum advising a Regional Director to issue a complaint premised on the misclassification theory, which Seyfarth reported here.

One of the cases brought under former General Counsel currently is pending before the NLRB, Velox Express, Inc. (15-CA-184006). Because of the importance of the case, the NLRB invited interested parties to file amicus briefs. One of the amicus briefs was filed by the current General Counsel, Peter Robb. Parting company with Griffin, Peter Robb has argued that misclassifying an employee as independent contractor, which deprives the worker of protection under the Act, standing alone, does not violate the Act.

2014 Representation Election Regulations

As previously discussed, in December 2017, the Board invited comments regarding whether the quickie election rules promulgated by the Obama Board should be retained, modified or rescinded. The comment period was extended to April 2018. Although the comment period has ended, the Board has yet to release its findings.

We will continue to monitor the Board's developments on these issues to see if the tides will change for employers.  Based on the Board's and GC's actions, it seems like there is hope for employers yet.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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