Recent NLRB Invitations for Briefs Forecast Changes in NLRB Precedents

May 19, 2014

When considering the issuance of decisions that overturn significant existing precedent or that otherwise might significantly affect the workplace, the National Labor Relations Board (NLRB) frequently will invite the submission of briefs from interested parties. Over the past two weeks, the NLRB has issued three such invitations for the submission of briefs in cases before it. These cases will decide:

  1. If employees have a right to use their employers’ email systems for collective and union activity;
  2. Whether certain college athletes and other college students constitute “employees” under the National Labor Relations Act and, therefore, are entitled to unionize; and
  3. How to determine whether a company is considered a joint employer under the Act.

Given the NLRB’s current composition, the decisions in these cases have the potential to change substantially existing NLRB precedents, expand the Act’s scope and negatively impact employers.

An Employee’s Right to Use an Employer’s Email System

On May 1, 2014, the NLRB invited parties to submit briefs in Purple Communications Inc., in which the NLRB will decide the permissible scope of employees’ use of their employer’s email and other electronic communications for Section 7 protected concerted activity. The administrative law judge (ALJ) in that case held (in a decision consistent with the Bush-era NLRB’s precedent in Register Guard, 351 NLRB 1110 (2007)) that an employer’s restrictions on employee use of its email systems was not an unfair labor practice, as long as the actions were non-discriminatory and not based on Section 7 rights. The NLRB has sought briefs on a number of issues in Purple Communications, including what “standard(s) of employee access to the employer’s electronic communication systems should be established” if it overrules Register Guard.

Former Board Member Wilma Liebman dissented from the Register Guard decision and has restated her disagreement with that standard on different occasions. The current NLRB general counsel and various Democratic board members similarly have stated or insinuated that they disagree with the Register Guard decision and believe that employees have a right to use an employer’s email system much as they can use an employer’s phone system. If the NLRB overrules the Register Guard standard and adopts the standard proposed by former Board Member Liebman, employers will lose at least some control over their email systems and their ability to limit employees’ use of those systems for non-work-related purposes.

College Students as Employees Under the Act

On May 12, 2014, the NLRB called for briefs in its review of the controversial March 26, 2014 decision in the Northwestern University case, which made national headlines when a NLRB regional director held that Northwestern’s football players were deemed employees under the Act and, thus, had a right to unionize. The NLRB is requesting briefs on a number of issues, including whether the NLRB should “adhere to, modify, or overrule the test of employee status” applied in Brown University, 342 NLRB 482 (2004), and, “if so, on what basis?” In Brown University, the NLRB held that graduate assistants were not “employees” under the Act because their relationship with the university was primarily educational, not economic.

The NLRB’s decision could have important implications for private institutions of higher learning concerning their scholarship athletes and student graduate assistants. We addressed some of those potential concerns in a March 28 WorkCite article. Although primarily of interest to private institutions of higher education, the potential impact of the rulings could affect employers outside of academia as well.

Separate Companies Deemed Joint Employers Under the Act

On May 13, 2014, the NLRB invited parties to submit briefs in Browning-Ferris Industries, on several issues, including whether the NLRB should “adhere to its existing joint employer standard or adopt a new standard.” The NLRB regional director in Browning followed the 30-year old precedent of TLI, Inc., 27 NLRB 783 (1984), which states that the determination of whether two entities constitute a joint employer under the Act requires an analysis of whether they share the ability to directly and immediately control or co-determine essential terms and conditions of employment, including matters such as hiring, firing, discipline, supervision and direction.

The invitation seeks briefs on whether the NLRB should adhere to this joint employer standard or adopt a new one. It also requests proposals for a new test and, if the test includes multiple factors, a list of factors that should be considered. Given the current NLRB composition, it is widely expected that the NLRB ultimately will adopt a more lenient standard for establishing joint employer status. In practical terms, such a development would increase the number of employees eligible to vote in elections and the number of employers subject to bargaining and unfair labor practice violations. This development should be of particular concern for companies that use staffing agency employees in addition to their own employees and to the staffing agencies themselves. In Browning-Ferris Industries, for example, the union is arguing that the proposed bargaining unit should include both the employer’s employees as well as a staffing agency’s employees who work at the same location.

Employer Take-Aways

After a relatively quiet period at the NLRB, we have been warning clients to expect an increase in important NLRB decisions that will benefit unions, increase the likelihood of unionization, and increase the risk of employer violations of the Act. Some of the decisions will result in the overturning of long-established NLRB precedent. The recent invitations for briefs in rapid succession further indicate that a newly active NLRB will be issuing decisions that significantly affect employers in the near future. Employers should pay close attention to developments at the NLRB and begin developing strategies to adjust to the NLRB decisions – those likely to come as well as those already issued by the NLRB.

The NLRB is accepting briefs in Purple Communications, Inc. until June 16, 2014, and in Northwestern University and Browning-Ferris Industries until June 26, 2014. For questions regarding these decisions or assistance in drafting or submitting management-focused briefs, please reach out to your McGuireWoods contact or a member of the firm’s traditional labor group.