Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

NLRB Proposed Rule States Graduate Students Are Not Employees

Posted in NLRB, Rulemaking

Last week, by a 3-1 vote, the NLRB approved a proposed rule that would classify graduate students, who conduct paid teaching and research, as students rather than “employees” under federal labor law. This rule would divest graduate students of their right to unionize and would end a recent wave of graduate student unionization efforts at private universities across the country. NLRB Chairman John Ring (R) stated that the purpose of the rulemaking was “to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.”

The status of graduate students under federal labor law has been a contested partisan issue for decades.  In fact, if approved, the new rule would be the fourth time since 2000 that the NLRB has changed its position on the ability of graduate students to unionize. However, in the past, the NLRB has made these decisions on a case-by-case basis—not through formal rulemaking.

Prior to 2000, graduate students at private colleges and universities were considered students. In 2000, the NLRB, controlled by appointees of President Clinton, ruled that graduate students at NYU were employees and could unionize. In 2004, when appointees of President George W. Bush assumed control, the NLRB reversed course and found that graduate students at Brown University should not be considered employees and did not have the right to unionize because their relationship to the university was “primarily educational.” The Obama-era NLRB then overturned that decision in 2016, deciding that students at Columbia University who received compensation for teaching and research that they performed at the direction of the university could be considered employees with the right to unionize.

In making its decision, the majority cited to the 2004 Brown University decision and noted that the research and teaching work performed by graduate students is “vital to their education,” provides them with “knowledge of their discipline,” and is necessary to building faculty relationships. The only Democrat on the NLRB, Member Lauren McFerran, voted against the proposed rule, calling the distinction between economic and educational relationships “made up.”

The rule is likely to have vast consequences for private universities where graduate students have already formed unions – many of which are currently involved in negotiations over an initial contract. Before the NLRB can make its final vote on the proposed rule, a 60-day period for public comment must pass.

Are Management’s Actions “Covered”? NLRB Finally Adopts “Contract Coverage” Standard for Employer Unilateral Changes

Posted in Union Negotiations

Yesterday, in a stark reversal of its precedent, the NLRB discarded the “clear and unmistakable waiver” standard.  Its replacement?  An employer-friendly “contract coverage” standard to determine whether a unionized employer has improperly changed a policy or practice regarding a mandatory bargaining subject.

In MV Transportation, Inc., 368 N.L.R.B. No. 66 (2019), the NLRB upheld an employer’s unilateral changes to its policies on a number of issues.  These included changes to policies addressing light duty work assignments, safety issues, and adherence to work schedules.  The NLRB found that provisions in the management rights clause of the applicable collective bargaining agreement (“CBA”) allowed the employer to make these changes without bargaining with the union.

The NLRB stated that it will apply the “contract coverage” standard when an employer makes a unilateral policy change based on a claim that language in the CBA allowed the employer to make the change.  When an employer defends a unilateral change on that basis, the NLRB will first apply ordinary principles of contract interpretation to the plain meaning of the CBA to determine whether the scope of the applicable CBA provision(s) permits the change.  The CBA need not specifically mention the policy or issue that the employer has chosen unilaterally to change.

If the plain language of the contract does not permit the employer’s unilateral policy change, however, the standard will be different.  In that case, the NLRB will examine the parties’ bargaining history and past practices regarding the issue.  It will continue to ask whether the union clearly and unmistakably waived its right to bargain over the change at issue. Continue Reading

Some Guidance for Employers on Drafting Lawful Conduct Rules

Posted in Employee Handbooks

Earlier this month, the NLRB’s Division of Advice (“Advice”) released a memorandum that opined on a variety of CVS Health’s (the “Company’s”) policies.  It considered whether those policies were “unlawfully overbroad” as they related to employees’ Section 7 rights under the NLRA.  It found that some were, but most were not.

The advice memorandum is a good read for labor professionals.  It provides examples of permissible employer regulations on employee conduct, including social media policies and codes of conduct.  More broadly, it may further help employers navigate the uncertain waters created in the wake of the Board’s recent Boeing Co. decision.  Furthermore, although Advice determined that most of the Company’s rules were permissible, its finding that several rules were unlawful was particularly noteworthy because it did so despite CVS Health’s savings clause.

In Boeing Co. (covered on this blog here), the Board set a new standard for addressing when a facially-neutral work rule, if reasonably interpreted, would potentially interfere with employees’ Section 7 rights under the NLRA.  The NLRB stated that moving forward it would evaluate two things: (i) the nature and extent of the rule’s potential impact on Section 7 rights, and (ii) legitimate business justifications associated with the rule(s).  Using this analysis, the NLRB created several different categories of rules:  those that are lawful, those that warrant individualized scrutiny, and those that are patently unlawful to maintain.

Applying this framework, Advice concluded that two policies were unlawful.  As previously mentioned, this was despite a savings clause in the Company’s social media policy that claimed that it “is not intended to interfere with any rights provided by the National Labor Relations Act.”  The disclaimer also provided that the policy is not “meant to limit your legal right to use social media to speak about…union-related topics or activities with others inside or outside the Company….”  Interestingly, Advice did not cite the NLRB’s 2014 ruling (which this blog previously discussed here) that such savings clauses “may, in certain circumstances, clarify the scope of an otherwise unambiguous and unlawful rule.”  Advice instead cited NLRB rulings from 1994 and 2007 holding that particular savings clauses did not cure employers’ otherwise overbroad prohibitions on protected activity. Continue Reading

NLRB Issues Notice of Proposed Rulemaking Amending Election Procedures

Posted in NLRB, Rulemaking

On August 12, 2019, the NLRB published a Notice of Proposed Rulemaking in the Federal Register regarding election procedures that the NLRB majority contends is essential to preserving employees’ right to free choice of representation.

The proposed rule contain three changes to current NLRB election regulations:

  • First, it replaces the current blocking charge policy with a vote-and-impound procedure. That is, under the amended regulations, a union election would not be blocked by a pending unfair labor practice charge.  Instead, the ballots would be impounded until the charge was resolved.
  • Second, it overrules Dana Corp, 351 N.L.R.B. 434 (2007). For voluntary recognition and for a post-recognition agreement to have a contract-bar effect, (1) the unit employees would need to be notified that voluntary recognition had been granted and (2) there would be a 45-day open period during which an election petition could be filed.
  • Third, in the construction industry, it requires affirmative evidence of majority employee support to prove a Section 9(a) relationship.  Contract language alone would not be sufficient proof.

The only Democrat on the NLRB, Member Lauren McFerran, dissented from the proposed amendments.  In her opinion, the majority’s amendments, if implemented, would not protect employee free choice of representation.  Further, she believes that the majority’s proposal appears “arbitrary,” fails to meet even minimal standards of reasoned decision making, relies on faulty premises, does not ask critical questions, and fails to analyze data and agency experience.

Whether these proposed amendments are ultimately implemented is, at best, uncertain.  The proposal is subject to public comments during the public comment period, which currently extends until October 11, 2019.  Following the public comment period, the NLRB will review the comments received and make any necessary charges to develop a final amended election rule.  While it does not appear that any comments have been submitted at this time, the NLRB’s proposed joint employer rule alone prompted 29,000 comments, suggesting that this proposal could also receive significant public attention.

Regardless, the proposed amendments to the election procedures is more evidence that the NLRB, under Chairman Ring’s leadership, is moving (or attempting to move) towards more rulemaking, rather than relying on case adjudication, to set precedent.  As we previously reported, Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions.

Chairman John Ring: The NLRB in 2019

Posted in NLRB, Rulemaking

On June 27, 2019, NLRB Chairman John Ring spoke at the 36th Carl A. Warns, Jr. and Edwin R. Render Labor and Employment Law Institute in Louisville, Kentucky.  Chairman Ring (R), a former management attorney who previously worked for the Teamsters before graduating from law school, was confirmed by the Senate in April 2018.  Chairman Ring sought to explain his vision for the NLRB and to give the audience a glimpse of what to expect in the next few years from the agency.

Chairman Ring articulated two objectives for the future of the NLRB.  First, Chairman Ring intends to expedite the processing of NLRB cases.  As many labor professionals can testify, the NLRB can take years to resolve a case.  To help reduce these delays, and with Chairman Ring’s guidance, the NLRB launched an internal pilot program in October 2018.  According to Chairman Ring, the pilot program can be summarized as (1) setting deadlines for all stages of NLRB cases and (2) limiting the time NLRB members can spend on dissents and concurrences.

Second, Chairman Ring would like to see the NLRB move towards more rulemaking, rather than relying only on case adjudication, to set precedent.  Chairman Ring believes that more administrative rules will promote consistency and predictability in NLRB decisions.  The NLRB has already issued a proposed rule for the joint employer standard and solicited input from the public on the 2014 Election Rule, and is currently sifting through thousands of comments that were submitted in response (the NLRB received 29,000 comments on the proposed joint employer rule alone).  Chairman Ring stated that the NLRB is expected to issue proposed rules in “mid-summer” regarding the blocking charge and voluntary recognition policies, whether students at universities are employees, and conversion of agreements in the construction industry.

Chairman Ring also reminded audience members that the NLRB is soon expected to have three Republican members (and no Democrats).  Since Member Mark Pierce’s (D) term ended in August 2018, the NLRB has had one open seat.  The term of Lauren McFerran, the remaining Democrat on the NLRB, is set to expire in December 2019.  According to Chairman Ring, the two Democrat seats could remain unfilled for some time.  The fact that the NLRB will operate with three Republican members is significant because Republican members have historically been more management friendly.

Chairman Ring finally informed the audience that the NLRB issued several decisions in June that he considers significant.  The first, Prime Healthcare Paradise Valley, LLC, 368 N.L.R.B. No. 10 (2019), determined that arbitration agreements are unlawful if employees are unable to file charges with the NLRB.  The second, UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2, held that employers do not have to allow union organizers access to their property, so long as they prohibit other nonemployees from similar activity.

Labor professionals will want to stay tuned.  Whether Chairman Ring’s vision for the NLRB will be fully realized is yet to be seen.  His vision of consistency and clarity in this area of the law would be welcome to most, but using rulemaking to achieve that goal is a substantial departure from the path the NLRB has traditionally followed.

The NLRB Expands Employer Authority over its Publicly Accessible Spaces

Posted in Property Rights, Union Organizing

office break roomIn a win for employers’ private property rights, the NLRB last month gave employers greater rights to control how their property is used, including what occurs on publicly accessible spaces within that property, like a cafeteria.  In UPMC Presbyterian Hospital, 368 N.L.R.B. No. 2 (2019), the NLRB held that “an employer may prohibit nonemployee union representatives from engaging in promotional activity, including solicitation or distribution in its public cafeteria so long as it applies the practice in a nondiscriminatory manner by prohibiting other nonemployees from engaging in similar activity.”

In doing so, the NLRB overturned prior decisions the majority described as creating a “public space” exception to a U.S. Supreme Court decision from the mid-1950’s.  The NLRB emphasized that the employer’s authority to prohibit such behavior lies in its ability to regulate the conduct that occurs in its public spaces, and not the content of the speech of those who use these spaces.

In UPMC, the hospital had a practice of prohibiting all nonemployees “from engaging in promotional activities, including solicitation and distribution, in its public cafeteria.”  To enforce this policy, a security guard had the Pittsburgh police remove two, nonemployee union representatives who were using a cafeteria table to, among other things, eat lunch with employees, discuss union organizing campaign matters, and display (and distribute) union flyers and campaign buttons.  One off-duty employee passed out some of the flyers to others in cafeteria.

According to the NLRB, the hospital’s application of its practice to this conduct was appropriate.  The hospital was able to demonstrate a number of other occasions on which it removed nonemployees from its cafeteria for engaging in similar, albeit non-union-related, behavior. Continue Reading

UAW Defeated at VW for Second Time

Posted in Union Organizing

By a vote of 833 to 776, the VW workers in Chattanooga again rejected the UAW.  The vote was held from June 12 through June 14, and 93% of those VW workers eligible to vote did cast a ballot in the NLRB-supervised election.

This UAW defeat follows the UAW’s defeat in 2014.  In this 2019 election, the UAW did manage to improve its percentage of “Yes” votes compared to the 2014 election.  In 2014, the UAW garnered 46.8%. This time the UAW had 48.2% of the vote total.

The UAW may file objections to the election or unfair labor practice charges to try to overturn the result.  Unless there is legal action overturning the election, under NLRB rules the UAW will have to wait at least one year to try again for a vote at VW Chattanooga.  In the meantime, the UAW criminal corruption scandal is still brewing in Detroit with 4 former UAW officials sentenced so far.

NLRB GC Says Uber Drivers are Independent Contractors

Posted in Independent Contractors, NLRB

Last month, the NLRB General Counsel issued an advice memorandum concluding that Uber drivers are independent contractors.  The GC applied the recent NLRB decision in Super Shuttle, which clarified the test applied under the NLRA to determine “employee” status.  In the process, it overturned an Obama Board precedent that the NLRB majority held was incorrectly decided.  As a result of this action, the GC directed that three different ULP charges filed against Uber be dismissed.

Recently, my partner Jackie Ford and I discussed the Uber advice memorandum in a recent podcast for the Vorys at Work series.  Those with an interest in the GC’s decision and how it could impact employers in different industries can listen to the podcast here.

NLRB Sets UAW Vote at VW for June 12-14

Posted in Union Organizing

The NLRB has approved a stipulated election agreement between Volkswagen and the UAW for a vote to be held from June 12 through June 14.  Close to 1,800 production and maintenance VW employees at the Chattanooga facility will be eligible to vote in the election.  Polling times are spread across three days with the vote count beginning after polls close at 8:00 p.m., Friday, June 14.

To clear the legal path for this NLRB vote, the UAW had to disclaim the micro-unit of about 170 maintenance workers.   Rather than continue to litigate over a micro-unit, the UAW decided to go for the traditional bargaining unit of all production and maintenance workers employed by VW in Chattanooga.

Following a tight contest in 2014, this election will be the UAW’s second attempt for VW’s production and maintenance employees.

Ohio Federal Lawsuit Challenges Union Members’ Rights to Resign From Union

Posted in Union Membership

On April 29th, the latest test of the Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018) decision was filed.  Janus made it unconstitutional to require public sector employees to become union members and pay union dues as a condition of employment and effectively eliminated union “fair share” fees.

In this latest challenge, three employees of Kent State University sued the Council 8 AFSCME, Kent State University, and University Trustees challenging the restrictions the union placed on members that limit when they can resign from the union and stop paying union dues.  The case was filed in the United States District Court for the Northern District of Ohio and is captioned Annamarie Hannay, et al. v. American Federation of State, County, and Municipal Employees, Ohio Council 8, et al., Case No. 5:19-cv-00951-JRA.

Two of the employees at issue in Hannay signed union dues authorization cards from AFSCME.  Those cards could only be revoked during a “window” period that begins 45 days and ends 30 days prior to each anniversary year of the union contract.  A member had to provide notice of intent to resign from membership in order to stop union dues from being deducted from the paycheck during this narrow period.  Assuming a three year contract, this would only permit resignation from the union during a 15-day period every three years.

Under Janus, an employee must affirmatively consent to union membership and a waiver of his or her free speech constitutional rights.  Hannay is the most recent of many cases being filed to challenge AFSCME’s notice window to opt-out of the union.  It is currently unclear whether this type of opt-out window will be permissible.  Therefore, the District Court will be challenged to determine whether the union’s restriction is constitutional and whether it provides members with a fair opportunity to opt-out of the union and relieve themselves of the obligation to pay union dues.

Until this issue is finally resolved, the labor professional should exercise care in the drafting of dues check-off contract language.