BOUNTY OF BIG ISSUES SLATED FOR DECISION BY NLRB IN 2014

By: Kenneth R. Dolin, Esq.

The coming year is expected to present significant developments from the National Labor Relations Board. For the first time since August 2003, the Board has its full complement of five members, three Democratic appointees (Chairman Mark Gaston Pearce and Members Nancy Schiffer and Kent Hirozawa) and two Republican appointees (Members Philip Miscimarra and Harry I. Johnson III). Furthermore, Richard F. Griffin Jr. was recently sworn in as NLRB general counsel for a four-year term.

Perhaps most importantly, the U.S. Supreme Court, in NLRB v. Noel Canning, No 12-1281, will likely decide the validity of the recess appointments of former Board members on the grounds that no valid recess existed when President Obama appointed them. At issue are several hundred prior decisions of the “old” Obama Board.

Also, in response to a district court decision issued in May, the Board suspended its partial implementation of a rule changing representation case processing, which had taken effect in April. Finally, the D.C. Circuit Court of Appeals enjoined the Board’s rule requiring the posting of employee rights under the National Labor Relations Act.

Separate and apart from the recess appointment issue, the validity of many prior decisions of the old Obama Board, and the rules on representation case processing and posting, many issues are currently before the new Obama Board. Here are the most significant:

Supervisory status. The new Obama Board will likely effectively impose a higher standard to prove supervisory status, just as the old Obama Board had done in G4S Regulated Security Solutions, 358 NLRB No. 160 (2012). Thus, putative supervisors will more likely be included in bargaining units and will be used more by unions to organize the employees they see.

Non-employee access to property and the standard for unlawful discrimination — as set forth in Sandusky Mall v. NLRB, 242 F.3d 682 (6th Cir. 2001) and Register Guard, 351 NLRB 1110 (2007), and likely to be reconsidered in Roundy’s (30-CA-17185-S). In Register Guard, the Board pronounced a new standard for determining when an employer has discriminatorily enforced its policy: the disparate treatment of activities or communications of similar character because of their union or other protected status. Thus, an employer was free to differentiate on a non-protected basis. The new Obama Board will likely expand nonemployees’ access to property and may very well use Roundy’s as the vehicle to overrule the more restrictive standard (from the employees’ perspective) for unlawful discrimination set forth in Register Guard.

The propriety of labor unions’ Beck notices. In Communications Workers v. Beck, 487 U.S. 735 (1988), the court restricted obligations of compelled members to core financial support and imposed an obligation on unions to notify members that they have a right to object to payments for union activities not germane to the union’s duties as the exclusive bargaining representative. The new Obama Board will likely narrow the scope of Beck and grant more leeway to unions’ Beck notices.

Independent contractor status. The new Obama Board will likely impose a higher standard to prove independent-contractor status and thus putative independent contractors will more likely be included in a bargaining unit and subject to union organizing.

Unit appropriateness. In Specialty Health­care Rehabilitation Center, 357 NLRB No. 83 (2011), the Board arguably created a new standard when it found that in any case in which a petitioned-for unit is readily identifiable as a group that shares a community of interest, the Board will find that unit “an” appropriate unit, even though employees outside the unit could be placed in a larger unit that would also be found appropriate or more appropriate, unless the party seeking the larger unit demonstrates that employees in the larger unit share an “overwhelming community of interest” with those in the petitioned-for unit. The new Obama Board will find ever smaller units constitute “an” appropriate unit.

Graduate teaching, research and graduate assistants. In Brown University, 342 NLRB 483 (2004), the Board held graduate teaching, research and graduate assistants are not statutory employees. It is widely expected that the new Obama Board will overrule Brown University and find all such assistants to be statutory employees subject to union organizing.

Striker reinstatement and an employer’s hiring of permanent replacements. In Hot Shoppes Inc., 146 NLRB 802 (1964), the Board rejected the conclusion that an employer, in hiring strike replacements, acted pursuant to a “contrived scheme” to defeat the economic strikers’ rights to reinstatement and that such a scheme was unlawful. The Board disagreed with the premise that an employer may replace economic strikers only if it is shown that it acted to preserve efficient operation of its business and concluded that an employer had a legal right to replace its economic strikers at will and that the motive for such replacement is immaterial, absent evidence of an independent lawful purpose. The new Obama Board may restrict, if not overrule, the holding of Hot Shoppes.

Post-arbitration deferral under the Olin/Spielberg standard. The issues will be whether the arbitral panel’s decision was repugnant or palpably wrong and whether the Board will adopt the new framework for post-arbitral deferral as set forth in GC Memorandum 11-05. The new Obama Board will likely impose a more rigorous standard for post-arbitral deferral.

Social media. The new Obama Board will likely broaden the concept of “concerted” and “protected, concerted activity” in the social-media context as the old Obama Board had done in Hispanics United of Buffalo, 359 NLRB No. 37 (2012).

Prohibitions on the use of company equipment. In Register Guard, the Board held that employees have no statutory right to use an employer’s e-mail system and thus employers are entitled to enforce blanket “business-only” policies. The new Obama Board is likely to overrule Register Guard in the context of computer usage rules. Appropriateness of “mixed” units of solely-employed and jointly-employed employees. In Oakwood Care Center, 345 NLRB 659 (2004), the Board required consent of both employers when a petitioned-for unit included both solely-employed and jointly-employed employees. The new Obama Board is likely to overrule Oakwood Care, which would provide more organizing opportunities for unions, especially amongst contingent workers.

Internal investigations. Specifically, at issue is whether an employer maintained an overly broad and discriminatory rule prohibiting employees from obtaining statements from their co-workers regarding allegations of sexual harassment. Absent the employer proving that witnesses needed protection in a particular investigation, the new Obama Board will likely find such a blanket prohibition unlawful following the holding of the old Obama Board in Banner Estrella, 358 NLRB No. 93 (2012).

Mandatory arbitration, alternative dispute resolution and the D.R. Horton standard. The new Obama Board is likely to apply D.R. Horton, 357 NLRB No. 184 (2012), broadly and find that in several contexts mandatory dispute resolution policies precluding employees from filing joint, class or collective claims addressing wages, hours or other working conditions against their employer in any forum, arbitrated or judicial, are unlawful because they restrict employees’ Section 7 right to engage in concert activity for mutual aid or protection.

Unit Elections. Finally, the new Obama Board will likely seek once again to implement the 2011 rule on representation case processing that was partially implemented in 2012 and then suspended, as well as the remainder of this representation case rule that was not implemented.

Implementation of the entire representation case proceeding rule would require quicker elections, expedited preelection hearings, more limited ability to resolve eligibility issues preelection, phone number and e-mail addresses on voter eligibility lists and a shortened period of time for employers to prepare the voter eligibility list. If implemented, this rule will minimize, if not “effectively eviscerate” (according to former member Brian Hayes), an employer’s legitimate opportunity to express its views about unionization and collective bargaining.

Portions of this article were excerpted from Mr. Dolin’s article, which was published in the November 18, 2013 edition of The National Law Journal, reprinted with permission.

©2013 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.