The current NLRB has been increasingly proactive in making changes to the traditional interpretation of the National Labor Relations Act. For example, while the NLRB has the authority to engage in federal “notice and comment” rulemaking, it has done so quite infrequently. Federal rulemaking requires the agency to publish proposed rules and give the public time to file written comments supporting or opposing the proposed rules. While a handful of the NLRB changes are discussed here, there are many significant changes and folks can learn more in our spring program Changes to the NLRA in the Current Administration to be held Feb 24-25.
The Board has established a “contract coverage” standard for establishing when an employer violates the Act by making a unilateral change in terms and conditions of employment. This means that if the change made falls “within the scope” of contract language granting the employer the ability to make a unilateral change, the Board will find that the employer did not violate the NLRA. The prior standard was that an employer violated the Act by making a unilateral change unless it could establish a “clear and unmistakable waiver” of the right to bargaining over the subject. This means that it will be more difficult to establish that an employer unlawfully changed terms and conditions of employment without bargaining.
PENDING PROPOSED RULES
Students not Employees
On September 23, 2019, the NLRB proposed a rule that would establish that students who perform work for the university as part of their studies, such as graduate teaching or research assistants, are not employees for purposes of the National Labor Relations Act. This would mean that students at private universities and colleges would therefore have no right to the protections of the NLRA or the right to engage in collective bargaining. Comments will be received on this proposed rule until November 29, 2019. More information can found on this rule here.
On August 12, 2019, the Board proposed a rule amending regulations pertaining to elections conducted by the NLRA. These amendments would change rules regarding blocking charges, which previously block elections based on unlawful conduct, and would decrease the time in which a petition can be filed down to 45 days after an employer voluntarily recognizes the union. In the construction industry, the amendment would require that to prove a Section 9(a)l./ relationship, the union needs “extrinsic evidence” to demonstrate that recognition was granted with a contemporaneous showing of majority support. Note to Building Trades Unions: the NLRB is taking comments on this proposed rule until October 11, 2019. More information can be found here. If you wish to discuss further.
Standard for Determining Joint Employer Status
On September 14, 2018, the NLRB proposed a rule changing the standard for determining whether an employer is a joint employer with another employer covered by the Act. Under the Board’s proposal, if would find two employers to be “joint employers” only if they “share or co-determine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction.” This impacts whether the ultimate or “user” employer (such as in construction or use of employment agencies) can be bound by the requirements of the NLRA. The comment period has closed and the Board is likely to issue a final rule on this matter in the near future.
GM Memorandum regarding the Duty of Fair Representation
The General Counsel to the NLRB issued a Memorandum on March 26, 2019 clarifying its inquiry when a union has been charged with violating its Duty of Fair Representation. Previously, on October 24, 2018, the General Counsel instructed NLRB regional offices that before finding negligence a defense to failing to represent bargaining unit members, the Union must prove it has a system for tracking grievances, and that it had communicated with the bargaining unit member about his or her alleged grievance. In March 2019, the board clarified that this prior memorandum does not require the Union to present a detailed defense of its decision not to pursue a grievance, but only show that the Union acted reasonably.