At the NLRB, Every Day Is Labor Day

At the NLRB, Every Day Is Labor Day Photo: Diego M. Radzinschi/NLJ

For many Americans, Labor Day means hanging out by the pool, hitting up some holiday sales, having a barbecue or heading off on one last vacation before summer ends and school begins. Labor Day has become so synonymous with fun and relaxation that many forget it was created to celebrate work—specifically the labor movement.

Given its reason for being, Labor Day 2014 is an appropriate time to reflect on some of the important developments that have occurred this year at the National Labor Relations Board—the federal agency most closely connected with the fate of unions in the U.S. It’s been a busy year for the agency, in which it’s gotten a new general counsel, Richard Griffin Jr., been the focus of a major decision at the U.S. Supreme Court, and issued a wide variety of interesting decisions and briefs.

One of the most important labor board developments of the year has been National Labor Relations Board v. Noel Canning, the U.S. Supreme Court decision dealing with the legitimacy of many of the board’s past decisions given the constitutionality of member appointments. The outcome—all nine justices struck down the recess appointments of three board members—will give the NLRB a lot of cases to look at again in the coming year, but at least now the board’s authority has been granted certainty going forward. After several years of sparring between President Barack Obama and Congress over appointments, the board now has five members and a general counsel—and it seems that for the first time in a long time, all of these appointments are beyond legal or constitutional reproach.

“Of course that will allow them to move forward on a number of issues they’ve teed up over the last year,” Ronald Meisburg, a partner in the Washington, D.C., office of Proskauer Rose and co-chair of the firm’s labor-management relations practice group, told Meisburg is also a former member and a former general counsel of the NLRB.

And there are many issues coming before the labor board. One of the most prominent (and for many employers who want to avoid unionization, one of the most unsettling) is the reappearance of so-called “quickie” or “ambush” union election rules. This is one of the areas where the board has much more room for movement now that it’s fully and legally staffed. The board originally proposed a similar set of rules in 2011, but withdrew them when a D.C. court ruled that the board lacked a proper quorum when the rules were made.

The proposed rules, opponents say, would give employers less of chance to have their side of the story heard during unionization campaigns. The rules would shorten the time between filing a petition and holding a union election, defer decisions about voter eligibility until after a union election, provide employee lists including email addresses and phone numbers to unions—plus several more substantial changes.

The NLRB has held a comment period on the rules, but they have not finalized the directive yet. “The process is probably going to result in a final rule being promulgated sometime, I suspect, before the end of the year,” Meisburg said, “although no one knows for sure.”.

The board has gotten more enthusiastic about rulemaking over the past few years, but it has not slowed down in taking on interesting cases that may have big effects on the world of labor law. “This has been a year of planting seeds with these amicus cases and so forth, and I think in the coming year that’s going to result in a crop,” noted Meisburg.

This year, the board helped college football players from Northwestern University take initial steps toward forming their own union, but they also took on another important—but less discussed—case involving unions and academia.

In February 2014, the NLRB issued a call for amicus briefs in Pacific Lutheran University v. Service Employees International Union, which involves nontenure- eligible contingent faculty members teaching at a religiously affiliated Tacoma, Wash.-based university. Pacific Lutheran University tried to prevent these faculty members from unionizing by claiming that they qualify as “managers” and that regardless of their status, the religious affiliation of the school puts it outside the NLRB’s jurisdiction.

When it looks at the case, the board will have to examine two sensitive questions. The first is whether Pacific Lutheran is an organization of enough “substantial religious character” to avoid NLRB jurisdiction. The other is what constitutes a “manager” in academia, an environment that may not lend itself easily to such distinctions. “One would expect that unions are going to be looking for a very high, difficult test to show that these people are managers,” said Meisburg. Certainly, given recent attempts to unionize adjuncts and lecturers at universities, the outcome of this decision may set important precedents.

Another big case the labor board threw a spotlight on this year was Purple Communications Inc. v. Communications Workers of America, AFL-CIO. In this case, a California company that provides communications services for the deaf and hard of hearing prohibited its employees from using company email for nonwork purposes. Workers and the union insist that this policy constitutes a violation of Section 7 rights under the National Labor Relations Act.

Back in June, the board invited briefs on the matter and in an amicus, the NLRB general counsel cast his lot with the union—joining them in asking the board to overturn its decision in the Register Guard case from 2007. In Register Guard, the NLRB ruled that employers may ban their employees from using company email for union-related activity.

Meisburg wondered how significant it really would be to employees to use their work emails to organize, given all of the other ways available for these communications. “There are more people coming into the workforce who are tech savvy and have smartphones that they use all the time,” he said. “They tweet or text each other all the time and have access to all sorts of social media sites. I think this makes it all the more difficult for the NLRB to justify why the employer should have to let someone use its email.”

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