Five Highlights From a Busy Month for the NLRB

Employment Law
 

The National Labor Relations Board (NLRB) has been busy the past few weeks. Below are the top five hits over the past month.

1. New rules on the horizon. In a new rulemaking agenda detailing both its short-term actions and long-term plans, the Board identified its priorities in addition to proceeding with its rulemaking regarding the joint employer standard. The topics included the Board’s current representation case procedures, the standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of the National Labor Relations Act (NLRA), and the standards for access to an employer’s private property. In addition, the Board plans to consider the current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry. “The Agenda reflects the Board majority’s strong interest in continued rulemaking,” Chair John F. Ring said in a statement. “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.” The NLRB noted that it received nearly 29,000 comments in response to its notice of proposed rulemaking on the joint employer standard, reflecting “the public’s strong interest in the Board providing greater clarity in this important area of the law.”

2. Employee criticism on social media. Considering the issue of employee criticism on social media, an Advice Memorandum to Coastal Industries Inc. concluded that while employers can’t prohibit workers from critical commentary, they can forbid workers from accessing sites with company devices. The company’s social media policy instructed employees to “refrain from posting derogatory information about the Company on [social media] sites and proceed with any grievances or complaints through the normal channels.” This rule was unlawfully overbroad, wrote Jayme L. Sophir, associate general counsel in the Division of Advice, because rules prohibiting disparagement of the employer have a “significant impact” on NLRA rights. “Such criticism is often the seed that becomes protected concerted activity for improving working conditions, the core of Section 7,” according to the Memo. “Although an employer may be understandably wary of reputational damage that can occur when criticized by its own employees, such an interest does not outweigh the core NLRA rights undermined by a broad ban on criticism or disparagement of the employer.” However, Sophir found that a rule prohibiting the use of company electronic assets to access social media accounts was lawful. In Purple Communications, the Board ruled that employees who have rightful access to their employer’s email system in the course of their work have a right to use that system to engage in Section 7-protected communications during nonworking time. According to the Memo, Purple Communications does not extend to other electronic communications systems, such as social media accounts.

3. Board OKs ban on union reps in public spaces. Union representatives can be banned from organizing in areas of an employer’s property that are open to the public, the Board ruled in a 3 to 1 decision involving University of Pittsburgh Medical Center Presbyterian Shadyside. Union reps met with a group of approximately six employees in the hospital’s cafeteria, eating lunch and discussing union organizational campaign matters. Security removed the reps as part of the hospital’s practice to remove nonemployees engaged in promotional activity in or near the cafeteria. The Board found their removal lawful, as “an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organization activity. The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any nonemployee access for any purpose.” The decision overruled the “public space exception” established by the NLRB in the 1980s, so long as the employer doesn’t treat union representatives differently than it treats other non-workers. The Board also gave the new standard retroactive effect.

4. Tribal jurisdiction remains unclear. The question of whether the NLRB has jurisdiction over tribal employers remains unanswered after the U.S. Supreme Court declined to grant certiorari in a case involving a California casino. The U.S. Court of Appeals, Ninth Circuit found the NLRB’s exercise of jurisdiction over Casino Pauma (in a decision holding the casino violated the NLRA by blocking workers from passing out pro-union materials) was a reasonable interpretation of the NLRA, applying Chevron deference. The casino appealed, challenging the Chevron doctrine, and pointing out that the Ninth Circuit opinion conflicted with case law from the Sixth and Tenth Circuits. In response, the NLRB contended that the majority of the casino’s customers and employees aren’t tribe members and that it engages in interstate commerce. The justices passed on the case, leaving the Ninth Circuit opinion in place.

5. Arbitration allowed—despite union contract. Arbitration may be allowed despite a union contract, the Board ruled in an opinion considering a race discrimination claim against Anheuser-Busch LLC. A weekend worker and later an apprentice—both bargaining-unit positions—Matthew Brown filed suit in federal court alleging violations of Title VII. Despite the fact that the collective bargaining agreement established a grievance procedure, the employer moved to compel arbitration pursuant to a clause found in a document all applicants must sign, even if covered by the collective bargaining agreement. An administrative law judge (ALJ) ruled that sending the case to arbitration would be an unlawful unilateral change to the collective bargaining agreement, but in a 2 to 1 opinion, the Board reversed. The employer’s motion to compel was an exercise of its First Amendment right to petition, because the underlying act—pursuing arbitration—was not an illegal objective, the Board said, nor was it baseless and retaliatory.

To read the NLRB’s long-term agenda, click here.

To read the NLRB’s short-term actions, click here.

To read the Advice Memorandum, click here.

To read the decision in University of Pittsburgh Medical Center Presbyterian Shadyside, click here.

To read the decision in Anheuser-Busch, click here.

Why it matters: The past few weeks have confirmed the NLRB’s pro-employer perspective, from allowing a hospital to remove and prohibit union reps from a public space to permitting an employer to pursue arbitration despite the existence of a collective bargaining agreement. The Board also set forth its rulemaking priorities, including a continued focus on an updated joint employer standard.