Hold on for the National Labor Relations Board’s version of the popular Disneyland attraction, Mr. Toad’s Wild Ride.
With NLRB Member Nancy Schiffer’s term ending on December 16, 2014, expect a flurry of important NLRB activity similar to that which attended the expiration of former-NLRB Member Brian Hayes’ term on December 16, 2012.
Among the matters awaiting Board decision are many contentious cases, including Northwestern University (Case 13-RC-121359) (whether scholarship student-athletes are employees under the NLRA); Browning-Ferris Industries (Case 32-RC-109684), (where the standard for “joint employer” status is in question); Pacific Lutheran University (Case 19-RC-102521), (whether a religiously-affiliated university is subject to the Board’s jurisdiction and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees); and Purple Communications, Inc. (Cases 21-CA-095151; 21-RC-091531; and 21-RC-091584) (whether a new standard for employee use of employer electronic communications systems (including email) should be adopted). In addition, the Board still must finalize its “quickie” election rules, which will make it easier for unions to successfully organize employees, and review the 300+ decisions invalidated by the U.S. Supreme Court’s Noel Canning decision.
In the six days preceding Member Hayes’s departure, the Board issued at least seven notable decisions – WKYC-TV, Inc., 359 NLRB No. 30 (2012) (overruling 50 years of precedent to hold that a dues deduction provision in a collective bargaining agreement survived the expiration of that agreement); Supply Technologies, LLC, 359 NLRB No. 38 (2012) (finding a non-union employer’s mandatory grievance-arbitration program unlawfully restricted employees’ access to the NLRB); Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012) (holding an employer violated the NLRA by discharging five employees because of their Facebook posts); Hawaii Tribune-Herald, 359 NLRB No. 39 (2012) (defining a “witness statement” that is exempt from disclosure to a union under Anheuser-Busch, 237 NLRB 982 (1978)); Alan Ritchey, Inc., 359 NLRB No. 40 (2012) (ruling employers must bargain with a union representative over discretionary discipline administered to unit employees that occurs after the union is certified, but before a first collective bargaining agreement is reached); Piedmont Gardens, 359 NLRB No. 46 (2012) (overruling Anheuser-Busch and finding an employer must give the union that represents its employees witness and other statements); and Latino Express, 359 NLRB No. 44 (2012) (interpreting the NLRA’s remedial “scheme” to require a respondent (charged party) to reimburse a victim of discrimination for any additional federal and state income taxes the victim may owe as a consequence of receiving a lump-sum backpay award covering more than one calendar year).
Most commentators, including this one, believe the NLRB will issue decisions that favor employees and unions in all of the pending matters, continuing the Board’s decidedly pro-labor leanings.
Buckle your seat belts.