Bar News - April 15, 2015
Labor & Employment Law: Big Macs, Fullbacks, Emails and Labor’s Parlous State: The National Labor Relations Board at the 80-Year Mark
By: Jim Allmendinger
Following the 1935 passage of the National Labor Relations Act, unions successfully organized millions of employees and, by the late 1950s, some 35 percent of private sector workers in America were union members.
Today, however, only 7 percent of private sector workers are unionized. Does that mean the National Labor Relations Board (NLRB) is not relevant to today’s workplaces? Nope. Even a quick look at the board’s recent decisions proves its relevance.
Just ask the fast food giant McDonalds. As the USA Today headline put it, “McDonald’s ruling ignites a business-labor firestorm.” The NLRB, having concluded that McDonalds and its franchisees are “joint employers,” issued unfair labor practice complaints against McDonalds and some of its franchisees. Labor saw this as a big victory, because McDonalds corporate operations can now be tied to its franchisees for liability purposes. McDonald’s says that is “wrong,” and it will fight a decision that “changes the rules for thousands of small businesses.” This promises to be a long battle.
Colleges and universities also see big changes looming. Football players, faculty, and graduate teaching assistants are all are the subjects of new rulings from the NLRB. The football players get the most attention in what everyone agrees is a groundbreaking case. In Northwestern University, the NLRB regional director in Chicago found, among other things, that players spend 50-60 hours per week in training camp, and 40-50 hours during the school year, all under a detailed schedule set by coaches.
On that basis, the regional director ruled that the players had enough attributes of employee status to form a union. The regional director’s decision has been appealed to the full board in Washington, DC, where a decision is expected later this year. That decision, along with the other decisions cited here, is available at www.nlrb.gov.
The NLRB is also taking a new look at college and university faculty. In Pacific Lutheran University, the board announced that it would reexamine NLRB v. Yeshiva University (1980), a Supreme Court decision that made it difficult to unionize faculty at private colleges.
In Yeshiva, the Court concluded that the tenured professors who made up the faculty senate were “managers,” not “employees,” and as such they had no right to form a union. In Pacific Lutheran, the board concluded that the university failed to demonstrate that full-time, non-tenure track faculty are “managers,” giving those faculty the right to unionize. That decision is sure to be appealed.
The NLRB also announced in Pacific Lutheran that it would take a second look at NLRB v. Catholic Bishop of Chicago (1979), where the Supreme Court decided that faculty at religious schools were not covered by the bargaining law. The board’s new standard reexamines religious schools and requires a showing by the school that faculty perform religious functions and have a specific role in the university’s religious educational environment if the school is to claim a religious exemption from the labor law.
Graduate student assistants and medical interns and residents also will be the subject of evaluation by the NLRB. They all face the same obstacle – a 2004 ruling in Brown University that held that graduate assistants were primarily “students,” not “employees.” The board is now rejecting arguments that these jobs are primarily student jobs with no right to organize.
In Beth Israel Medical Center, the NLRB allowed medical interns, residents, chief residents, and fellows to go forward to a union election. And in Columbia University and The New School, the board has allowed unionization drives to go forward among graduate and teaching assistants.
Email at work is also getting a new review. In Purple Communications Inc., the NLRB overruled the 2007 decision Register Guard and held that employees do have a statutory right to use their employer’s email systems for union-related purposes. The board concluded that the earlier decision focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” An appeal is expected.
On March 18, an administrative law judge issued an even broader decision in T-Mobile Communications, covering not just emails, but a host of other employer policies related to everything from complaints about wages to signing the “employee acknowledgement form” for computers and emails, where those policies are overly broad and limit employees’ rights to communicate about workplace issues. Of particular note, the board’s email and social media decisions apply to employees regardless of whether there is a union.
More significantly, the NLRB has adopted new election rules. The new rules significantly shorten the period between the time a union files a request for an election and the time the board holds an election to determine whether employees want a union. Union advocates see the new rules as a long-overdue response to employers’ delaying tactics that thwart unions.
Employers see it differently, and on Jan. 5, 2015, employers filed suit to stop the NLRB from moving forward with what the Chamber of Commerce calls “ambush elections.” According to the Chamber, a plaintiff in the lawsuit, “The NLRB’s rule drastically accelerates the union election process, depriving employers of their right to explain to employees the impacts of unionizing.” And this month opponents of the new rules voted in the United States Senate to kill the NLRB election rules. President Obama has threatened a veto.
Such disputes highlight the NLRB’s continuing importance to the workplace. The NLRB’s latest rulings follow a period of controversy over the appointment of board members.
In New Process Steel v. NLRB (2010), the Court held that the board cannot act without a quorum of at least three members. And in NLRB v. Noel Canning (2014), the Court said the president did not have the power to make recess appointments to the NLRB when the Senate was in session, even if those Senate sessions were pro forma sessions.
Those decisions beg the question of how an administrative agency can function if Congress fails to act. But the Senate ultimately reached a compromise on board appointments, and so for now, the board can render decisions – decisions that continue to affect millions of workers across the country.
Now a sole practitioner in Durham, Jim Allmendinger represented the National Education Association of New Hampshire for 30 years, has been active on various bar committees, including the Ethics Committee, and is a fellow of the College of Labor and Employment Lawyers.