National Labor Relations Board

National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

June 17, 2020

By Mary E. Aldridge

On June 10, 2020, the National Labor Relations Board (the NLRB or the Board) issued a decision that reversed a 2014 Board decision regarding the test for exercising jurisdiction over faculty members at religious institutions.  In Bethany College, the Board held that the test for exercising such jurisdiction that was established by the Board in Pacific Lutheran University was inconsistent with U.S. Supreme Court and D.C. Circuit Court of Appeals precedent, and restored the test established by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB.

Read More >> National Labor Relations Board Reverses Obama-Era Decision Regarding Standard for Asserting Jurisdiction Over Faculty Members at Religious Institutions

NLRB Issues Final Rule on Joint Employer Status

March 2, 2020

By Stephanie H. Fedorka

On February 26, 2020, the National Labor Relations Board issued its final rule regarding the standard for determining joint employer status.  The final rule overturns the standard articulated in the Board’s 2015 Browning-Ferris decision and returns to the pre-Browning-Ferris “direct control” standard.  The final rule also provides greater clarity regarding the application of the standard.  The purpose of the rule is to increase predictability and consistency with respect to the Board’s determination of joint employer status under the National Labor Relations Act.  The final rule will go into effect on April 27, 2020.

Read More >> NLRB Issues Final Rule on Joint Employer Status

NLRB Reinstates Former Legal Standard for Deferral to Arbitration

December 27, 2019

By Subhash Viswanathan

On December 23, the National Labor Relations Board reversed its 2014 decision in Babcock & Wilcox Construction Co, Inc., and reinstated the legal standard for deferring to the arbitration process that had existed prior to the Babcock decision. The Babcock decision created an extremely stringent standard for deferral which made it more likely that an employee who had been disciplined or discharged would be able to litigate an unfair labor practice charge even after losing an arbitration proceeding. In United Parcel Service, Inc., the NLRB held that the arbitration process collectively bargained by the parties should be accorded more deference in unfair labor practice cases in which an employee alleges that discipline or discharge violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act.

Read More >> NLRB Reinstates Former Legal Standard for Deferral to Arbitration

"Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures

December 18, 2019

By Subhash Viswanathan

On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015.  The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing.  The final rule will become effective on April 16, 2020.

Read More >> "Quickie" Elections Are Not So "Quickie" Any More: NLRB Amends Union Representation Election Procedures

Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

October 4, 2019

By Robert F. Manfredo

On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA).  Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.

Read More >> Proposed Rule Would Preclude Undergraduate and Graduate Students from Union Organizing

NLRB Adopts Employer-Friendly "Contract Coverage" Standard for Determining Whether Unilateral Changes Violate the NLRA

September 13, 2019

By Justin A. Reyes

On September 10, 2019, the National Labor Relations Board issued a favorable decision that makes it easier for employers to demonstrate that a unilateral change in terms and conditions of employment was permitted by the collective bargaining agreement.  In M.V. Transportation, Inc., a three-member majority of the Board (over one dissent) abandoned its previous "clear and unmistakable waiver" standard and adopted the more lenient "contract coverage" standard.

Read More >> NLRB Adopts Employer-Friendly "Contract Coverage" Standard for Determining Whether Unilateral Changes Violate the NLRA

The NLRB Publishes Proposed Rules Amending Procedures in Representation Cases

August 15, 2019

By Justin A. Reyes

On August 12, 2019, the National Labor Relations Board (“NLRB” or the “Board”) published proposed rules with the goal of protecting “employees’ statutory right of free choice on questions concerning representation.”  The proposed rules would amend three Board policies and practices that are not currently set forth in its rules and regulations:  (1) the “blocking charge policy”; (2) the “voluntary recognition bar”; and (3) the standard of proof required to convert a Section 8(f) collective bargaining relationship into a Section 9(a) bargaining relationship in the construction industry.

Read More >> The NLRB Publishes Proposed Rules Amending Procedures in Representation Cases

NLRB Holds That Employers May Prohibit Non-Employee Union Organizers From Soliciting Employees in the Public Spaces of Their Facilities

June 16, 2019

By Tyler T. Hendry

On June 14, 2019, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in UPMC and its Subsidiary, UPMC Presbyterian Shadyside, reversing long-standing precedent and holding that employers may bar non-employee union representatives/organizers from soliciting employees or promoting union membership in public areas within an employer’s facility.

Read More >> NLRB Holds That Employers May Prohibit Non-Employee Union Organizers From Soliciting Employees in the Public Spaces of Their Facilities

NLRB Eases Burden of Demonstrating Independent Contractor Status by Overruling Prior Decision

February 19, 2019

By Nicholas P. Jacobson

On January 25, 2019, the National Labor Relations Board issued a decision clarifying the test for determining whether workers are independent contractors or employees.  In SuperShuttle DFW, Inc., the Board reversed its 2014 decision in FedEx Home Delivery where it revised the traditional common-law test for determining whether workers are employees or independent contractors.  Prior to 2014, the test analyzed whether common-law factors set forth by the Supreme Court showed that the workers had significant entrepreneurial opportunity for gain or loss.

Read More >> NLRB Eases Burden of Demonstrating Independent Contractor Status by Overruling Prior Decision

Recent NLRB Decision Restricts the Scope of Protected Concerted Activities Under the National Labor Relations Act

January 23, 2019

By Adam P. Mastroleo

On January 11, 2019, in Alstate Maintenance, LLC, the National Labor Relations Board issued a decision that draws a clear distinction between employee conduct that constitutes protected "concerted activities" under the National Labor Relations Act and employee conduct that constitutes unprotected individual action.

Under Section 7 of the NLRA, employees have a right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."  Over the years, as the Board majority in Alstate Maintenance pointed out, the Board has issued decisions that "blurred the distinction" between protected group action and unprotected individual action.  The Board majority characterized its Alstate Maintenance decision as the beginning of the process of restoring that distinction "by overruling conflicting precedent that erroneously shields individual action and thereby undermines congressional intent to limit the protection afforded under the Act to concerted activity for the purpose of mutual aid or protection."

Read More >> Recent NLRB Decision Restricts the Scope of Protected Concerted Activities Under the National Labor Relations Act