Making Up For Lost Time: The NLRB’s Ambitious Agenda

For the first time in nearly a decade, the National Labor Relations Board has its full complement: five members who have been confirmed by the Senate. While the Board was relatively quiet in the latter half of 2013, the volume and nature of its recent activity suggests that 2014 will bring many changes. With three of the Board’s five members being former union attorneys, the changes are not good news for employers. Below are some of the Board’s key moves so far.

Quickie Elections

The Board recently issued proposed rules that, if enacted, will make it easier for unions to organize employees by shortening the time between the filing of a representation petition and an election. The Board first proposed the rules in 2011, but a federal court invalidated them because the Board lacked a valid quorum. On February 6, 2014, the Board proposed virtually the same rules.

By shortening the time between the filing of a petition and an election, the so-called “quickie election” rules significantly limit the time employers have to communicate with employees and conduct a campaign before a union election. Unions, on the other hand, have the benefit of communicating with workers for many months and then choosing a strategic time to file the petition. Among the proposed changes, the employer must provide its employees’ phone numbers and email addresses to the union no more than two days after the election is ordered, and the time between filing the petition and conducting the pre-election hearing is cut in half, from 14 days to seven.

The NLRB will accept public comments on the proposed rules through April 7, 2014. It will also hold a public meeting in Washington, D.C. on April 10 and 11. Anyone who wishes to speak at the meeting must submit a request to the NLRB by March 10.

Use of Employer Email

In 2007 the NLRB ruled that an employer may prohibit “employees’ nonwork-related use of its email system, unless the [employer] acts in a manner that discriminates against Section 7 activity.” Despite the somewhat confusing language, the case, Register Guard, was seen as a victory for employers. In a February 25, 2014, memorandum the NLRB’s General Counsel suggested that its view of the issue may change. In the memorandum the General Counsel identified cases that raise the question of employees’ right to use an employer’s email system as cases that the Agency’s regional offices must to send to its headquarters’ Advice Division for guidance before issuing a decision. We see this as a sure sign that change is in the air. We expect the Board to place limits on the restrictions employers may place on employees’ use of its email system for nonwork purposes, including union organizing.

Weingarten Rights

The February 25th memorandum also mandates that cases involving the applicability of Weingarten principles in non-unionized settings be referred to the Advice Division for guidance. This is a topic on which the Board has flip-flopped several times following the 1975 Supreme Court decision, NLRB v. J. Weingarten, Inc., that an employee represented by a union has the right to have a union representative present at an investigatory interview that the employee reasonably believes may result in disciplinary action.

The Board extended the right to representation, known as the Weingarten right, to non-union employees in 2000. In 2004, when the composition of the Board changed, the Board reversed itself, holding that Weingarten rights do not extend to non-union employees. We expect that the Board will again reverse itself and that the right to representation at investigative interviews—including interviews related to allegations of workplace harassment and misconduct—will again be extended to nonunion employees.

Expansion of Coverage

Another sure sign that change is in the air is that in February the NLRB sought advice from the public on issues related to the scope of its coverage. In the first case, Pacific Lutheran University, the issues are (1) whether a religiously-affiliated university is subject to the Board’s jurisdiction; and (2) whether certain adjunct faculty are employees covered by the National Labor Relations Act. In Pacific Lutheran, a union is seeking to represent full-time non-tenure-eligible faculty members, generally referred to as adjunct faculty. The university argues that the Board lacks jurisdiction because it is a religiously-operated institution and that the adjunct faculty members are managers under Supreme Court precedent. We expect that the Board’s decision regarding its jurisdiction will apply to all religiously affiliated schools, not only universities. If adjunct faculty are determined to be employees for purposes of the Act, unions will gain a large group of potential members.

The NLRB also solicited input, in the form of amicus briefs, as to whether the Board should change its standard for deferral to arbitration awards. Babcock & Wilcox Construction Inc. When the Board defers to an arbitrator’s decision, the losing party is essentially foreclosed from litigating the same issue before the Board. Under the proposed new framework, a party asking the Board to defer to an arbitration award must make several showings, including that the collective-bargaining agreement incorporated the statutory right at issue (or that it was presented to the arbitrator) and that the arbitrator both correctly enunciated the applicable statutory principles and also applied them in deciding the issue. If adopted, this new, higher standard will effectively give unions a second bite at the apple when an arbitrator rules in the employer’s favor.

For additional information, please contact a member of Fredrikson & Byron’s Labor Management Relations Team.