On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration.  Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.

Read More >> NLRB Reverses Three Obama-Era Decisions in One Day

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

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

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

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

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

The U.S. Department of Labor announced it has made technical changes to the National Labor Relations Act ("NLRA") rights poster that federal contractors and subcontractors are required to display under Executive Order 13496, “Notification of Employee Rights Under Federal Labor Law.”

Read More >> USDOL Announces Technical Updates to NLRA Poster Under Executive Order 13496

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

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

On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors.  As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.

Read More >> NLRB Vacates Recent Joint Employer Decision

Yesterday afternoon, SEIU Local 500 made a request to Region Five of the National Labor Relations Board ("NLRB") to withdraw its petition to represent a bargaining unit of Resident Advisors ("RAs") at George Washington University.  The Regional Director of NLRB Region Five granted the request.  So, the election to determine whether the RAs wished to join a union (which was scheduled to occur today), has been canceled.  At least for now, this means that the issue of whether RAs at institutions of higher education are employees who are entitled to unionize will not be presented to the full NLRB or a federal appellate court for a decision.

On April 21, 2017, the Acting Regional Director of Region Five of the National Labor Relations Board ("NLRB") issued a Decision and Direction of Election holding that Resident Advisors ("RAs") at George Washington University are employees under the National Labor Relations Act ("NLRA") who are entitled to vote in a union representation election.  This decision comes on the heels of the NLRB's recent decision in Columbia University, holding that graduate and undergraduate student assistants are employees who are also entitled to unionize.  This ruling by NLRB Region Five could potentially open the door for unions to organize RAs at other private institutions of higher education. The representation petition at George Washington was filed by Local 500 of the Service Employees International Union ("SEIU").  SEIU sought to represent a bargaining unit of all full-time and regular part-time RAs at George Washington, which consisted of approximately 110 individuals.  As a condition of becoming an RA, an individual must be a full-time undergraduate student enrolled in a degree-granting program, and must have completed his or her first year of studies.  RAs at George Washington are expected to be in good academic and judicial standing.  George Washington argued that RAs should not be considered "employees" under the NLRA for two principal reasons:  (1) its requirement for RAs to be undergraduate students is necessary for the RAs to develop a "peer-to-peer mentoring relationship" with their assigned residents; and (2) RAs are an important part of George Washington's residence life program, which is an extension of its academic program. The Acting Regional Director of NLRB Region Five rejected George Washington's arguments after a hearing on these issues, finding that the RAs have an employment relationship with the University.  The Acting Regional Director determined that RAs perform services for the University, are subject to the University's control, and perform their services in exchange for payment.  The RAs at George Washington receive a stipend of $2,500 for the academic year, less applicable tax withholdings, as well as free on-campus housing valued at $12,665 per year.  The RA position description at George Washington sets forth four main categories of job duties, along with a list of particular expectations for each category of job duties.  The Acting Regional Director also found that RAs are subject to discipline, up to termination, if they fail to comply with George Washington's policies or if they fail to remain in good academic or judicial standing.  One particular piece of evidence that the Acting Regional Director found to be significant was that RAs at George Washington are required to sign a four-page document entitled "Resident Advisor Employment Agreement," which describes the University's "expectations and employment terms" for RAs. According to the Acting Regional Director, the mere fact that being an RA might be part of the educational experience of an undergraduate student at George Washington does not preclude a determination that the relationship is principally an economic relationship.  The Acting Regional Director wrote:  "Employment experiences can simultaneously be educational or part of one's personal development, yet they nonetheless retain an indispensable economic core." A representation election will be scheduled in the coming weeks for the RAs at George Washington to determine if they wish to be represented by SEIU for purposes of collective bargaining.  George Washington has the right to seek review by the NLRB and potentially by a federal appellate court if SEIU wins the election.  At this point, two of the three occupied seats on the NLRB are filled by Democratic appointees who are pro-union.  There are also two vacancies on the NLRB.  When those vacancies are filled by President Trump, it is expected that the NLRB will have its first Republican majority in approximately nine years.  Therefore, this ruling by NLRB Region Five may not be the last word on this important issue for institutions of higher education.