RECENT DEVELOPMENTS AT THE NATIONAL LABOR RELATIONS BOARD

During the past sixty years the percentage of unionized workers in the private sector has plummeted from a high of 33% in 1952 to a percentage today of less than 7%.  While a number of factors such as globalization, changing social standards, expanded use of subcontractors, and precarious economic circumstances have contributed to the decline; stiffened employer opposition to union organizing  has certainly been a major factor in the decline of organized labor as a political and economic force.

Because the National Labor Relations Board’s statutory mandate is to promote and protect union organizing and collective bargaining rights it has in the past several years, by rule and by decision, made it easier for unions to organize.  It has done this by removing obstacles which favored management and by expanding the pool of workers eligible for union organization.  More specifically, recent rules or decisions promulgated by the NLRB have:

1. Proscribed employer bans against employee use of company emails for organizing purposes Purple Communications, 361 NLRB 126 (2014).

2. Drastically reduced the campaign period between the filing of a petition and the conducting of an election.  79 Fed.Reg. 7,318-7.364 (2014)

3. Concluded that scholarship football players at Northwestern University are statutory “employees” and thus eligible to organize and bargain collectively with full protection under the National Labor Relations Act.  NLRB Case No. 13-RC-121359

Employee use of Company Email for Organizational Activity

Since its decision in Register Guard, 351 NLRB 1110 (2007) the NLRB had made clear that employers could forbid employee use of its electronic processes (email, voicemail, faxes, photocopying, etc.) for union organizing purposes.  It was consistent with the Board’s long held position that an employer could exercise exclusive control over its own property.  However, recognizing now the realities of modern communication and the ubiquitous use of company emails by employees for non-business purposes, even if officially proscribed, the NLRB in its recent Purple Communications decision ruled that it could not ban employee use of its email processes during the employees “non-work time.”  Traditionally non-work time are those times in which employees are at the worksite but are appropriately engaging in non-work related activities.  Historically, lunchtime, break time, and some preliminary and postliminary times of the day which employees are not expected to be engaged in productive work are regarded as “non-work” time.

The Board in its decision specifically ruled that a total ban against employee use of company email was a violation of Section 8(a)(1) of the Act, but that under special, very limited circumstances employers could restrict its employees’ use of company email if the restriction was necessary to maintain production or discipline.  This new standard will have broad ramifications in that due to the speed and breadth of electronic communications, a union will be able to disseminate its message much more quickly and efficiently.  Unions will no longer be dependent upon bulletin board postings, handouts, flyers, and person-to-person conversations.

Expedited Representation Elections

Traditionally, the period of time between the filing of a Representation Election Petition and the election was about forty to fifty days.  The longer the period of time between the petition and the election the better the chances are for a management win.  Better, more comprehensive campaigns against unionization can be developed and executed by management during this elongated campaign period.  Any delay in conducting the election will also result in a natural dissipation of union support.  For decades unions have been seeking to speed up the election cycle, and effective April 14, 2015 the NLRB by its rulemaking authority has developed a new election process, which will result in representation elections being held about twenty days after the filing of the petition.

The new process will result in what is being called “ambush elections” or “quickie elections.”  The import of this new process will be that employers may be forced to an election without a clear understanding of the issues at hand, and without being able to rebut the union’s position and to state its own case.  A union typically goes to great lengths to conceal its activities from management and to peak its support immediately before the filing of its petition.  An inattentive company can be hard-pressed to respond effectively within 20 days if it has been unaware of the union activity and the issues presented.

As a result employers would be well advised to continually educate its workforce regarding the downsides to unionization.

Unionization of College Football Players

Although of lesser importance to the management community as a whole a recent ruling by the NLRB is enlarging the pool of employees eligible for union organization.  In a fascinating case arising from Northwestern University in Evanston, Illinois, a Regional Director of the NLRB has ruled that Northwestern’s scholarship football players are, in reality, employees of the University and thus eligible to seek union representation.  While at first glance it would appear that the Board is dramatically overreaching to find a new pool of employees eligible for union organization, this ruling, however, is only the latest in a series of NLRB decisions addressing the status of graduate assistants, teaching assistants, research fellows, and such in the country’s private universities and research centers.

In an early pivotal case the Board ruled that graduate assistants and research fellows at New York University were statutory employees and thus eligible to seek unionization.  New York University, 332 NLRB 1205 (2000).  In that case the University unsuccessfully argued that the graduate assistants’ efforts were primarily attendant to their graduate studies and their personal professional development.  The Board disagreed stating that their relationship with the University was more akin to an employment relationship in which the University derived real economic benefit.  That ruling was overturned later in Brown University, 342 NLRB 483, 2004 by a Republican dominated Board who accepted the University’s argument rejected earlier in the New York University case.

If the Board ultimately finds that the scholarship football players at Northwestern University are statutory employees then the status of graduate students, teaching assistants, and research fellows will certainly be revisited.  What impact such a decision would have on intercollegiate athletics can only be the subject of interesting speculation.

Conclusion

Because of vibrant political discord in the recent past, the NLRB has been hampered by the failure of both parties to successfully appoint and seat nominees to the Board.  Currently the Board enjoys a full complement of members and appears to be making up for lost time.  One can expect that the Board, with its Democrat majority, will continue issuing new decisions favorable to organized labor and its efforts to reverse its decades long decline.

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