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NLRB Announces Plans for Further Rulemaking: Election Rules, Union Access to Employer Property, Question of Whether Student Athletes on Scholarship Are Employees, and More

The rulemaking priorities of the National Labor Relations Board (“NLRB” or “Board”) have been released, signaling what Board Chairman John F. Ring described as “the Board majority’s strong interest in continued rulemaking.” The announcement was contained in the Unified Agenda of Federal Regulatory and Deregulatory Actions, published by the Office of Management and Budget’s Office of Information and Regulatory Affairs.

Issues Identified by the Board for Further Rulemaking

The Board majority has identified the following as areas in which it intends to engage in additional rulemaking:

  • The Board’s current representation-case procedures.

  • The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.

  • The standard for determining whether students who perform services at private colleges or universities in connection with their studies [including student athletes on a scholarship] are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).

  • Standards for access to an employer’s private property.

The Board noted that, in addition to these areas, it is “proceeding with its rulemaking regarding the joint-employer standard.”

Notably, each of the identified issues is one that the current Board majority has identified as an area in which it questions Obama-era Board rulemaking (in the case of representation case and election procedures) or Board decisions that have been seen as advancing the agenda of organized labor and its supporters.

The Board’s Representation Election Rules

One of the Obama Board’s most controversial actions was its own exercise in rulemaking, which resulted in the 2015 implementation of expedited election rules that not only reduced the average time between the filing of a representation petition and the holding of a vote from approximately 45 days to something in the 25-day range, but also limited employer rights to resolve legal issues at a pre-election hearing and increased union rights to information about employees at an earlier stage.

In December 2107, the then-new Republican majority announced that it was seeking comment from interested parties concerning the impact of the changes in the representation case rules that took effect two years earlier. Specifically, the Board posed three question in its Request for Comments:

  • Should the 2014 Election Rule be retained without change?

  • Should the 2014 Election Rule be retained with modifications? (If so, what should be modified?)

  • Should the 2014 Election Rule be rescinded? (If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?)

In explaining its decision to issue the Request for Comments, the Board majority made clear that it is seeking the views of all interested parties, including labor and management, those in government and the Board’s General Counsel. The Board has also made clear that while it is possible that it may engage in rulemaking to further amend the election rules and procedures, it may maintain the 2014 Election Rules without change, noting that “the Board merely poses three questions, two of which contemplate the possible retention of the 2014 Election Rule.”

While the Board has not yet released the results of its Request for Comments, it is likely that they will be reflected in any new proposed rulemaking in connection with the processing of representation petitions and the holding of elections.

The “Blocking Charge Rule”

The Blocking Charge Rule, which holds that in many circumstances the Board will not conduct a representation election while there are pending unfair labor practice (“ULP”) charges, is another area in which members of the current Board majority indicated an interest in changing and is also identified in the Rulemaking Agenda.

Under the Board’s 2014 Amended Election Rules, the NLRB holds that, when a ULP charge is filed during the pendency of a representation petition, the Board will not conduct the election if the party that has filed the charge—typically the petitioning union or, in the case of a decertification petition, the incumbent union facing a vote to decertify it as the representative—asks that the election be deferred until after the charges are resolved, provided that the charges allege actions by the employer that the union claims prevent or interfere with a fair election. Many observers believe that such blocking charges are used tactically by unions that are concerned that they will face defeat at the polls.

Section 103.20 of the final rule requires that a party wishing to block processing of the petition must file a request to block and simultaneously file a written offer of proof in support of its unfair labor practice charge. If the Region believes the charge precludes a question concerning representation and no request is filed, the Region may ask the Charging Party if they wish to request to block. If so, the Charging Party should be informed that they must file a request to block and an offer of proof, including the names of witnesses who will testify in support of the charge and a summary of each witness’s anticipated testimony. In addition, the Charging Party must promptly make the witnesses available to the Region.

In December 2017, in two decisions, one unpublished, Board Members Kaplan and Emanuel, who both participated in the Rulemaking Agenda, indicated that they believed that the Board should reexamine the Blocking Charge Rule.

The Board Intends to Engage in Rulemaking on the Issue of Whether Graduate Teaching Assistants Are Employees for Purposes of the Act

Another legacy of the Obama Board that the Rulemaking Agenda indicates is likely to be reversed is the Board’s holding in Columbia University that graduate teaching assistants and research assistants are employees under the National Labor Relations Act (“Act”), with the rights to organize and engage in collective bargaining.

In deciding Columbia University, the Board jettisoned its 2004 decision in Brown University in which graduate teaching assistants were held not to be employees for purposes of the Act. The ColumbiaUniversity majority concluded that the Brown University majority “failed to acknowledge that the Act does not speak directly to the issue posed here, which calls on the Board to interpret the language of the statute in light of its policies.” The Columbia Universitymajority noted that “the Brown University decision, in turn, deprived an entire category of workers of the protection of the Act, without a convincing justification in either the statutory language of the Act or the policies of the Act.”

The Agenda Suggests the Board Will Likely Increase Its Use of Its Rulemaking Authority

Commenting on the Rulemaking Agenda, Chairman Ring noted, “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

©2019 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Steven M. Swirsky labor employment lawyer health care and life sciences attorney
Member of the Firm

STEVEN M. SWIRSKY is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies.

Mr. Swirsky:

  • Advises employers on a full range of labor and...
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