Media Center

February 28, 2020
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Introduction

If 2018 was a year of elevator music at the National Labor Relations Board, 2019 was symphony of sound.  The Board’s initiatives were varied, high-profile and in the vast majority of cases, the developments were positives for employers.  In a number of key areas, the Board reversed recent decisions of the Obama-era Board to restore long-established precedent.

In Fiscal Year 2019, the Board received 18,552 unfair labor practice charges and 2,095 representation cases.  The Regional Offices issued 916 complaints and resolved over 5,800 unfair labor practice charges, a settlement rate of 99.3 percent.  The Board issued 303 decisions in contested cases.  The agency reported that it recovered over $56 million in backpay, fees, dues and reimbursements for employees.

In its Annual Performance and Accountability Report, the Board proudly touted its successful efforts to close cases faster.  Consistent with its strategic plan, the Board reduced the time from filing to disposition from an average of 90 days to an average of 74 days, a reduction of 17.5 percent.  The Board also reduced its backlog of cases.

Also significant was the Board’s rulemaking efforts.  The Board issued final rules and several notices of proposed rulemaking.  The Board is currently in the midst of rulemaking to address the joint employer standard, election protections and the coverage of undergraduate and graduate students under the National Labor Relations Act (“Act”).

There was certainly a crescendo of activity from the Board at the end of calendar year 2019, but throughout the year there was a fairly consistent drum beat of good news for employers as well.  A key theme for 2019 was restoration – a return to tests and formulas that had been in place for long periods of time, decades in some cases.  Repeatedly, the Board reversed the often-controversial decisions of the Obama-era Board.  In many ways, the Board’s actions were music to employers’ ears.

We summarize the key labor law developments from 2019 below.

New (old) Election Rules Formally Adopted

For years we have been following developments related to the Board’s representational election rules.  In 2015, new election rules took place that shortened the period of time between the filing of a petition for an election and the actual election.  This change was viewed almost universally as benefiting labor unions.  The truncated timeframe, as well as the significant administrative burdens placed on employers in that timeframe, appeared to be engineered solely to help unions win more elections.

The time between the date an election petition is filed (in the vast majority of cases it is the union filing the petition) and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization.  Less time means less time to connect with employees.  The new rules, known as the ambush election or quickie election rules, were finalized in 2014 and became effective in April of 2015.

In December of 2017, the Board issued a Request for Information, seeking public input on the quickie election rules, and the Board’s rules in representation cases generally.  We did not hear much in 2018 or for most of 2019, but on December 18, 2019, the Board published a Notice of Final Rulemaking announcing significant changes to the election rules.  In general, the Board extended the timeframe between the time of filing of a petition and the election, and provided employers with more time to comply with the onerous administrative burdens placed on them during the pre-election period.

The Final Rules provide that the pre-election conference, previously required to be scheduled within eight days of the service of the petition, will now be scheduled 14 days from service.  In addition, the deadline for posting the Notice of the Petition was extended from two business days to five business days.  Employers will also have eight business days to file a position statement in response to a union petition.   The new rules also extend the time to provide the required voter eligibility list, or Excelsior list, from two days after the date of election to five business days.

The new rules will also change the process for certain challenges, including challenges related to who is eligible to vote in the election. Under the quickie rules, these challenges were deferred until after the election.  Now, the parties can litigate these issues before the election or agree to defer the matter until after the election.  In addition, if there is a pre-election hearing, the parties will be permitted to file post-hearing briefs with the regional director within five business days of the hearing.  Under the quickie rules, the parties could only file briefs with special permission of the regional director.

We believe that overall these changes will help employers facing a union campaign.  The changes should also make the process more efficient, because employers will have more time to evaluate and attempt to resolve issues before the election.

A Summary of the Board’s Significant Decisions

As noted above, there were a number of significant Board decisions in 2019, and some of the key decisions are summarized here.

Board Restores Independent Contractor Test

In a key decision for many franchisors and franchisees, and others who rely on independent contractors, the Board reinstated its test for examining contractor status.  In 2014, the Obama-era Board, in a case involving Fed Ex delivery drivers, “refined” its test for examining contractor status. The refinement was really a fundamental shift in how the Board reviewed these questions, and, not surprisingly, the refined test led to many more findings of employer-employee status.

The “refinement” diminished the importance of the workers’ entrepreneurial opportunities, holding that this question was really a minor part of the overall analysis.  That changed in SuperShuttle DFW, 367 NLRB No. 75 (2019).

In SuperShuttle DFW, the Board announced that it was overruling the Obama-era “refinement” and returning to the standard that had been in place for many years.  The Board cited years of case law, which held that the entrepreneurial opportunity was actually a key question in the analysis.

The Board made clear that it will continue to apply the common law agency test to analyze whether a worker is an independent contractor or an employee.  That test requires examination of a number of factors, including:

• The extent of control exercised over the worker;
• Whether the worker is engaged in a distinct occupation or business;
• The kind of occupation, and whether it is typically performed under supervision;
• The skill required;
• Who supplies the tools and equipment necessary to do the work;
• The length of time the worker is engaged;
• The method of payment;
• The intention of the parties with respect to their relationship; and
• Whether the principal is a business.

The courts and the Board have long made clear that all of these factors must be considered and no single factor is controlling.  In addition, the analysis is not quantitative, but is qualitative.  In other words, one cannot simply count up the factors favoring one classification and make a determination. In SuperShuttle DFW, the Board confirmed that all of the factors are important and no single factor will end the analysis.

The Board also made clear that entrepreneurial opportunity was indeed a key question, and not a sub-factor.  Just like the question regarding the right of control, the opportunity for profit and loss is really an issue that is at the heart of several of the factors.  Many of the factors may or may not demonstrate that the worker has an opportunity to make more money.  The Board stated that moving forward, while analyzing each factor, it will continue to ask whether the workers at issue do or do not possess entrepreneurial opportunity.

Where the common law factors demonstrate that the workers in question are afforded significant entrepreneurial opportunity, the Board will likely find independent contractor status.

Board Restores Protections for Employer Property Rights

The National Labor Relations Act requires that employers refrain from interfering with or restraining employees’ rights to engage in union activity.  A tension often arises between employer rights, including those rights that arise under other laws, and the prohibition on interfering with employee rights under the Act.

In 1956, the United States Supreme Court explained in Nat’l Labor Relations Bd. v. Babcock & Wilcox Co., 351 U.S. 105 (1956), that an employer may prohibit non-employee distribution of union literature on company property if (1) there are other available channels of communication that will enable the union to reach employees with its message and (2) the employer also prohibits other forms of distribution by non-employees.  In other words, an employer cannot discriminate against unions by restraining their right to distribute union literature or solicit members on company property, while allowing other non-employees to engage in that sort of behavior.  That would be an unfair labor practice. As a United Stated Supreme Court decision, Babcock & Wilcox is the real Law of the Land sort of precedent.

However, in 1982, the Board held that the Babcock & Wilcox criteria do not matter if the non-employee union activity is on any portion of the employer’s private property that is open to the public, such as a cafeteria.  Since then, the Board has held that union organizers cannot be denied access to public areas (such as cafeterias), so long as they use it in the way it was intended (to order and eat food) and are not disruptive.  Several appellate courts agreed – and several didn’t.  However, since then, the Board has consistently found that it is an unfair labor practice for an employer to prohibit non-employee union organizers from engaging in solicitation and other promotional activities in public areas of an employer’s premises, so long as they are not being “disruptive.”

That all changed in UPMC Presbyterian Shadyside and SEIU Healthcare Pennsylvania, 368 NLRB No. 2 (2019).  In UPMC Shadyside, the Board eliminated the “public space” exception that it created in 1982 and returned to a purer interpretation of Babcock & Wilcox. That’s good news for employers who have public spaces on their private property.

The Board held that an employer has no legal obligation to allow use of its facilities by non-employees for promotional or organizational activity. “The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employer must allow any non-employee access for any purpose.

As a result, if there are other channels for the union to reach employees and the employer prohibits all promotional and solicitation activities on its property, the employer may prohibit union activity in public spaces as well (even if it is not disruptive).

Board Restores Prior Standard Allowing for Confidential Internal Investigations

In what may be viewed as one of the most significant decisions of 2019, the Board held that employers can, in fact, require that employees maintain confidentiality during an internal investigation.

The Obama-era Board issued a highly controversial decision that had the effect of allowing employees to discuss otherwise confidential internal investigations absent exceptional circumstances.  In Banner Estrella Medical Center, 362 NLRB No. 137 (2015), the Obama-era Board held employers were prohibited from requiring employees to maintain the secrecy of information related to an ongoing investigation absent a specific articulable justification.  The Board held that whether an employer could enforce such a confidentiality obligation would be determined on a case-by-case basis, and an employer was required to justify any confidentiality requirement.

This approach was a problem for a whole host of reasons, including that it contradicted guidance from the Equal Employment Opportunity Commission, jeopardized the integrity of workplace investigations (including harassment investigations) and increased the risk of retaliation.

On December 16, 2019, the Board overturned Banner Estrella Medical Center, and its case-by-case analysis requirement.  In Apogee Retail, 27-CA-191574, 27-CA-198058 (2019), the Board held that confidentiality policies, like all workplace policies, should be evaluated in accordance with the Board’s policy evaluation standard announced in Boeing Co., 365 NLRB No. 154 (2017).

The Board went on to provide bright line, clear guidance to employers by holding that “investigative confidentiality rules are lawful and fall within Boeing Category 1—types of rules that are lawful to maintain—where, by their terms, the rules apply for the duration of any investigation.”  In other words, a confidentiality obligation that lasts only during the term of the investigation is lawful.

The Board also held that, where confidentiality rules extend beyond the duration of the investigation, the rules would be considered Category 2 rules under Boeing.  As such, a determination of their legality requires determination as to whether the employer “has one or more legitimate justifications for requiring confidentiality even after an investigation is over, and if so, whether those justifications outweigh the effect of requiring post-investigation confidentiality on employees’ exercise of their rights under Section 7 of the National Labor Relations Act.”  The Board remanded the Apogee Retail case for further proceedings on this issue.

In the meantime, employers now have some clarity regarding confidentiality requirements tied to workplace investigations.  To the extent that such requirements last only through the duration of the investigation, such policies/rules are lawful.  If there is a justification to require confidentiality to remain in place beyond the duration of the investigation, then the rule may also be lawful.  While there does remain some uncertainty with respect to rules that last beyond the term of an investigation, there is also now some much-needed clarity for employers.

Board Holds that Misclassification Alone is not a Violation of the Act

In 2019, the Board made clear that the misclassification of a worker as an independent contractor, when the worker should properly be classified as an employee, is not in and of itself a violation of the Act.

In Velox Express, Inc., 368 NLRB No. 61 (2019) the Board held that Velox, a medical courier service, misclassified its drivers as independent contractors.  The Board held that the drivers were employees under the Act.  However, the Board refused to adopt an Administrative Law Judge’s separate finding that the misclassification alone violated the Act.  The Board found that conclusion was simply a “bridge to far.”

Section 8 of the Act prohibits employers from interfering with employee rights under the Act, and from coercing or restraining employees from exercising those rights.  The ALJ had found that misclassification dissuaded employees from exercising their rights under the Act.  The ALJ ruled that misclassification chilled employee exercise of protected activities, and therefore, violated Section 8 of the Act.

But the Board found that a misclassification was not the type of inherently threatening or coercive conduct that has historically been found to violate the Act.  Essentially, absent additional conduct on the part of the employer, a misclassification alone is not enough to deter employees from exercising their rights.

Interestingly, the Board agreed with the ALJ that the employer’s decision to discharge a driver who raised concerns about how the drivers were classified was a violation of the Act.  As noted above, the Board agreed that the drivers were really employees and not contractors.  The Board further agreed that the employer took action to discharge the driver because she engaged in activities protected by the Act, which is unlawful.

The Board’s decision is certainly a welcome relief for employers who engage independent contractors, especially in the transportation industry.  However, it is also a warning that, while misclassification alone may not warrant consequences under the Act, if a worker is misclassified, liability under applicable labor and employment laws may await.  As this case demonstrates, misclassified independent contractors will be protected by the Act.

Board Reverses Decision Permitting Unfettered Use of Employer Email

Last year, we let you know that the Board intended to review the rules governing employee use of the employer email system for union organizing activities.  The Board made good on that promise in 2019.  But let’s start a little further back.

In Purple Communications, 361 NLRB No. 162 (2016), the Obama-era Board held that employees have the right to use employers’ email systems to unionize and engage in other activities protected under the Act.  On August 1, 2018, the Board approved an invitation to file briefs on whether Purple Communications should be modified or overruled altogether.

On December 16, 2019, the Board did in fact overrule the controversial Purple Communications decision in Caesars Entertainment d/b/a/ Rio All-Suites Hotel and Casino, 28-CA-060841 (2019).

In Caesars, a Las Vegas hotel implemented a policy barring its employees from using the hotel’s email system to send any non-business information to one another.  Employees filed an unfair labor practice charge alleging that the rule unlawfully restricted their rights under Section 7 of the NLRA pursuant to the Board’s Purple Communications rule.  An Administrative Law Judge analyzed the policy in accordance with Purple Communications and agreed with the hotel’s employees.  The ALJ held that the hotel’s rule unlawfully interfered with employees’ rights to engage in union and other activity protected by Section 7 of the Act.

The employer appealed to the Board.  In turn, the Board invited the parties and other interested stakeholders to submit briefs on the issue. After briefing, the Board overturned Purple Communications and ruled that the hotel’s policy was lawful.  The Board determined that in most workplaces, sufficient means of communication exist such that employees have no statutory right to engage in Section 7 activity through their employers’ email systems.  In other words, employers may prohibit employees from using company-owned email systems to send non-business communications, even during non-working time.

Employers should note that the general rule in Caesars is not absolute.  The Board recognized that in rare instances where the employer’s email system is the only reasonable means of employee communication with one another during non-working time, employees must be permitted to engage in Section 7 activity through the email system.  Moreover, consistent with prior Board case law, employers must still refrain from implementing policies that specifically prohibit Section 7 activity, or which single out protected activity for restriction.

Nonetheless, all things considered, the Board’s Caesars decision is another big win for employers under the Trump-era Board.

Board Adopts New Standard for Evaluating Waiver

In MV Transportation, Inc., 368 NLRB No. 66 (2019), the Board adopted a new test for determining whether a union waived a right to bargain over a specific issue through collective bargaining.  In MV Transportation, after the employer unilaterally implemented work rule changes the union filed an unfair labor practice charge alleging that changing the rules without bargaining was a violation of the Act.  The employer argued that the union had waived the right to bargain over the changes.

The Union attempted to rely on Provena St. Joseph Medical Center, 350 NLRB 808 (2007), and argued that it had not “clearly and unmistakably waived” its right to bargain over the changes during collective bargaining.  In reaching its decision to dismiss the charge, the Board overruled Provena.  In doing so, the Board adopted a more employer-friendly standard.  Under the new “contract coverage” standard, the NLRB will allow a unilateral change to a term and condition of employment, notwithstanding the lack of a clear and unmistakable waiver by the union, if the change falls “within the compass or scope of contract language that grants the employer the right to act unilaterally.”

With respect to the allegations in MV Transportation, the Board found that the collective bargaining agreement allowed all of the employer’s work rule changes.  Employers will now have much more flexibility in making changes mid-contract, provided that the changes fall within the scope of the employer rights as set forth in the agreement.

Board Restores Deferral Standard 

In United Parcel Service, Inc., 369 NLRB 1 (2019), the Board returned to its traditional standard for determining whether to defer to an arbitrator’s prior resolution of a grievance concerning an employee’s discipline or discharge that has been alleged to violate the Act.  United Parcel Service overruled the Obama-era decision in Babcock & Wilcox Construction Co., Inc., 361 NLRB (2014), and returned to the standard set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984).

Under the new (old) standard, the Board will defer to the arbitrator’s decision where (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the Act.

In addition, United Parcel Service restored policies for pre-arbitral deferral, which were established in United Technologies Corp., 268 NLRB 557 (1984), and for deferral to pre-arbitral settlement agreements set forth in Alpha Beta Co., 273 NLRB 1546 (1985).

In restoring the prior standards for deferral, the Board cited an intention to better promote the strong policy in favor of arbitration for resolving employment disputes.

Board Decisions on Appeal

It was a fairly active year for Board cases on appeal, with over twenty cases decided by various courts of appeal in 2019.  The rulings were mixed – some in favor of employers, some clearly not.  A few warrant discussion here.

Sixth Circuit Rules Reaffirms Employer Rights to Make Statements During Campaign

In Hendrickson U.S.A., LLC v. Nat’l Labor Relations Bd., 932 F.3d 465 (6^th Cir. 2019) the company received notice that a group of employees had formed a union organizing committee in conjunction with the United Steel Workers of America.  The company quickly began a campaign against unionization.  First, the company sent employees a letter.  It emphasized the wages and benefits the company already provided the employees and made clear that unionization would not automatically guarantee an increase in compensation.  Rather, the company and any recognized union would begin negotiations “from scratch.”  A few days later, the company presented a PowerPoint slideshow, which expressed the company’s view that unionization would change the culture, relationships would suffer, and flexibility would be replaced with inefficiency.

The union filed an unfair labor practice charge, alleging that the letter and presentation were coercive threats in violation of Section 8(a)(1) of the Act.  The Board ultimately agreed with the union and found that the letter and presentation violated the Act.

The Company filed an appeal with the Sixth Circuit Court of Appeals.  With respect to the “from scratch” letter, the court started by recognizing that the Act explicitly permits employers to express their opinions and views, provided there is no threat of reprisal or promise of benefit.  Based on prior precedent using similar language, the Court noted that it is permissible for employers to emphasize that increased compensation is not automatic with unionization.  Accordingly, statements of negotiations “from scratch” are not per se unfair labor practices but could be if they indicate that the employer would engage in regressive bargaining or lower benefits as punishment for unionization.  Overall context is the guidepost for that determination.  With this backdrop, the Court held that the “from scratch” letter did not indicate regressive bargaining when read in context.  It was simply emphasizing that automatic wage increases would not follow.  The fact that no election was scheduled at the time helped the Court to reach this decision.

As for the PowerPoint presentation, the Court recognized that the Act specifically provides that a union is the exclusive bargaining representative of its members.  As a result, the company would not be in a position to deal directly with the employees.  Accordingly, the Court held that statements that the company culture would change, that relationships would suffer, and that flexibility would be replaced with inefficiency were protected predictions based on the obligations of the Act.

The Court reached the correct conclusion, but this case highlights how organizing campaigns are traps for the unwary.  In a different context, with different or additional statements made at a time near an election, the court may have reached a different conclusion.  It emphasizes to keep in mind that the overall context that overcasts a campaign can be all the difference between winning and losing.

D.C. Circuit Reaffirms Test for Determining When University Faculty May Unionize

Those in higher education are likely aware, either by name or by practical effect, of the Supreme Court’s holding in Nat’l Labor Relations Bd. v. Yeshiva University, 444 U.S. 672 (1980).  In Yeshiva, the Court concluded that the Act applied to faculty of private universities, but full-time faculty were “managerial employees” and could not organize under the Act.  The Court held that full-time faculty were exempt as managerial employees because they exercised effective control over university policies, including absolute control over academic matters.  The Court’s decision, now forty years old, recognized that sub-groups of faculty could exist (contract, contingent, non-tenure) that were non-managerial.

Since the Court’s opinion in Yeshiva, the Board has struggled to develop a workable rule for analyzing when faculty (or a subgroup) are managerial.  It developed its most recent rule in 2014 in Pacific Lutheran University, 361 NLRB NO. 157 (2014), which focuses on faculty participation through committees and the ability of those committees to make “effective recommendations” over certain subject matters:  academic programs; enrollment management policies; finances; academic policies; and personnel policies and decisions.  If faculty participates on committees that make effective recommendations on those topics (with primary emphasis on the first three) the Board will consider those faculty members as managerial.  Under this rule, the Board concluded that for a subgroup of faculty to be managerial, the subgroup must maintain majority status on the committee.

This test was considered in University of Southern California v. Nat’l Labor Relations Bd., 918 F.3d 126 (D.C. Cir. 2019).  The full-time and part-time, non-tenure faculty of USC’s School of Art and Design decided to organize.  USC argued that the faculty was managerial under Yeshiva and Pacific Lutheran and therefore could not unionize.  The Board disagreed, finding that this subgroup of faculty, although it participated in committees, did not maintain majority status on those committees and did not make effective recommendations.  Effective recommendations, according to the Board, required that the committee’s recommendations are almost always followed and do so routinely without independent review.  USC subsequently refused to bargain with the subgroup of faculty and appealed the Board’s decision.

The Court of Appeals for the D.C. Circuit rejected the Board’s requirement that the subgroup of faculty maintain majority status on the committees to be considered managerial.  Strict evaluation of numerical majority, the Court held, does not follow the spirit of Yeshiva.  Rather, the Court ruled that the Board must focus on the structure of the committees in question.  According to the Court, the proper analysis is twofold: (1) whether a faculty body exercises effective control; and if so, (2) whether, based on the faculty’s structure and operations, the petitioning subgroup is included in that managerial faculty body.  As part of the second element, the subgroup may be considered non-managerial if its interests are so divergent from the rest of the faculty that holding a minority of seats is akin to no managerial role at all, or if the subgroup’s participation in the committee is so low that it eliminates any managerial role.

Following this holding, those in higher education may find that their non-tenured faculty are more cautious about pursuing organization.  It may also have unintended consequences of non-tenured employees refusing to participate in committees with the goal of showing that the structure of the committee does not afford them managerial authority.

D.C. Circuit Reaffirms That it is Difficult to Avoid Obligation to Bargain as a Successor

First Student v. Nat’l Labor Relations Bd., 935 F.3d 604 (D.C. Cir. 2019), involved an employer’s obligation to bargain following the purchase of a business.  While the Act explicitly provides that employers must bargain with representatives of employees, it does not specify what the duty entails when one company purchases another.  The United States Supreme Court answered that question (in part) in the 1970s in NLRB v. Burns Int’l Sec. Servs, 406 U.S. 272 (1972).  In Burns, the Court held that if a majority of the successor’s employees are comprised of the predecessor’s workforce, the union maintains its representative status and the successor must bargain with the representative as provided in the Act.

That duty does not attach, however, until the successor has hired enough employees to realize that a majority of the full complement will be comprised of the predecessor’s workforce.  In the interim, the successor can set initial terms of employment without bargaining.  There is one exception to setting initial terms of employment as a successor – if it is “perfectly clear” that the successor will hire enough employees that the union’s majority status will continue.  In such a “perfectly clear” situation, the successor must bargain over the initial terms of employment, also.

In First Student, a school district invited bids and awarded a contract to provide transportation services for its students.  First Student was awarded the contract and it began discussions with the school district over specific aspects of its services.  During those discussions, representatives from First Student met with existing school district employees.  The representative told the employees that they expected to offer employment to current employees who applied and met its hiring criteria (which were the same criteria the school district maintained).  The representatives stated that they would hire as many employees as possible, would recognize the union if it hired fifty-one percent of the existing workforce, and that it typically hired eighty to ninety percent of existing workforces.

After First Student and the school district finalized their agreement, First Student distributed a memorandum with initial terms of employment.  The terms differed from the existing collective bargaining agreement.  It provided lower rates of pay, less guaranteed hours, and changed the attendance policy.  The union requested to bargain over the initial terms of employment, arguing that First Student was a “perfectly clear” successor.  First Student refused.  It ultimately hired forty-two of the fifty-five incumbent employees and continued to refuse to bargain.  The union filed an unfair labor practice charge.

The Board found that First Student was a perfectly clear successor.  As soon as it met with the incumbent employees and indicated that it would hire as many employees as possible, it became a perfectly clear successor.  First Student subsequently appealed to the Court of Appeals for the D.C. Circuit, which ultimately agreed with the Board.  In its opinion, the Court made clear that the way to avoid perfectly clear successorship is to state that offers of employment would be conditioned on acceptance of new terms of employment.  Expressing intent to retain the predecessor’s employees without simultaneously make a clear announcement of intent to establish different initial terms will subject an employer to the duty to bargain over initial terms.

First Student reminds employers to be extremely careful in conveying messages to a predecessor’s workforce.  There are magic words.  Failure to say them will cause an employer’s ability to set initial terms to evaporate.

What’s Next?

Board Issues Notice of Proposed Rulemaking Regarding Joint Employer Standard

In September of 2018, the Board issued a notice of Proposed Rulemaking regarding the standard for determining joint employer status.  According to its Annual Performance and Accountability Report, the Board received nearly 29,000 comments on the proposed rules.  We believe that it is likely that the Board will issue a Final Rule in 2020, and we are hopeful the Final Rule will provide clear guidance and aid in compliance.

Board Issues Notice of Proposed Rulemaking Regarding Students

In September of 2019, the Board issued a Notice of Proposed Rulemaking, which if made final, would exclude students at private colleges and universities who perform services in connection with their studies from coverage under the Act.  The Board’s position is grounded on

Board Issues Three New Proposed Rules Regarding Representational Procedures

On August 9, 2019, the Board announced a Notice of Proposed Rulemaking.  By way of rulemaking, a majority of the Board has proposed to change the Blocking Charge Policy, the Voluntary Recognition Bar, and rules governing union recognition in the construction industry.

The proposed change to the Blocking Charge Policy would modify the Board’s long-standing rule that requires a union representation election (or decertification election) be placed on hold if an unfair labor practice (“ULP”) charge has been filed regarding conduct leading up to the election.  Often times, ULP charges are filed to simply delay the election as a tactical move.  The revised Blocking Charge rule would create a vote and impound process.  In other words, the election would not be blocked by the filing a ULP charge, but would be conducted.  However, the votes would not actually be counted until after the ULP charge is resolved.

The Voluntary Recognition Bar currently provides that the representational status of a union voluntarily recognized by the employer cannot be challenged for a “reasonable period of time” after the voluntarily recognition.  Since 2011, the reasonable period of time has been defined as six months to a year.  The proposed rule would reinstate a pre-2011 rule, which provides that employees or a rival union could challenge the union’s status during the 45-day period following the voluntarily recognition.

The revision to the rules governing recognition in the construction industry would require unions to actually have evidence to demonstrate that a majority of employees favored union recognition.  In the past, a written agreement that such majority support existed was enough.  Moving forward, in order to protect employee free choice, actual evidence, other than the contract, must be provided.

The Notice of Proposed Rulemaking continues a recent trend for the Board.  While it does have detailed rules and regulations, often the Board makes and changes its rules by decision-making.  Recently, the Board has been committed to making more changes through the formal rulemaking process.  Formal rulemaking provides for the opportunity to review and comment on the rules prior to implementation.  In addition, the rulemaking process also allows for more clarity, as rules are not connected to specific fact patterns, but are, hopefully, more readily understood and implemented.

Summary

As detailed above, 2019 was an active year for the Board.  Employer-friendly decisions were issued on a fairly consistent basis, and the Board laid the groundwork for that trend to continue in 2020.  Through the hard work of the General Counsel’s office, various notices of proposed rulemaking, and its typical decisional law, the Board is poised to issue a number of impactful decisions in 2020.  For many employers, the hope is that the sound of beautiful music will continue.

As the Board’s efforts continue, we will keep you updated on our blog: www.palaborandemploymentblog.com