March 24, 2020

The National Labor Relations Board Recent Changes and Decisions

By Florence M. Johnson, Principal Attorney - Johnson and Johnson, PC

By Florence M. Johnson, Principal Attorney - Johnson and Johnson, PC

Employment & Labor Law Newsletter - Fall/Winter 2019

National Labor Relations Act of 1935 and Creation of the Board

The Taft-Hartley Act of 1947 was a set of amendments to the National Labor Relations Act (hereinafter “NLRA” or “Act”) of 1935. The NLRA prohibited “unfair labor practices” (hereinafter “ULP”) by employers. The purpose was to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices that can harm the general welfare of workers, businesses and the U.S. economy. Also cited as, NLRA or the Act; 29 U.S.C. §§ 151-29 U.S.C.A. § 169 [Title 29, Chapter 7, Subchapter II (West)]. Sec. 10. [§ 160.] (a) [Powers of Board generally]

The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8 [section 158 of this title]) affecting commerce. See, NLRA, Sec. 10. [§ 160.] (a)

National Labor Relations Board (NLRB) What is the Board?

Sec. 3. [§ 153.] (a) [Creation, composition, appointment, and tenure; Chairman; removal of members] The National Labor Relations Board (hereinafter called the “Board”) created by this Act [subchapter] prior to its amendment by the Labor Management Relations Act, 1947 [29 U.S.C.A. § 141 (West) et seq.], is continued as an agency of the United States, except that the Board shall consist of five instead of three members, appointed by the President by and with the advice and consent of the Senate. Of the two additional members so provided for, one shall be appointed for a term of five years and the other for a term of two years. Their successors, and the successors of the other members, shall be appointed for terms of five years each, excepting that any individual chosen to fill a vacancy shall be appointed only for the unexpired term of the member whom he shall succeed. The President shall designate one member to serve as Chairman of the Board. Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. […]

(c) [Annual reports to Congress and the President] The Board shall at the close of each fiscal year make a report in writing to Congress and to the President summarizing significant case activities and operations for that fiscal year.

(d) [General Counsel; appointment and tenure; powers and duties; vacancy] There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board shall exercise general supervision over all attorneys employed by the Board (other than administrative law judges and legal assistants to Board members) and over the officers and employees in the regional offices.

NLRA, Sec. 3. [§ 153.]

The NLRB has 51 field offices across the country with headquarters in Washington D.C. You may visit headquarters at 1099 14th Street NW or go to www.nlrb.gov. During the Obama Administration the NLRB enjoyed more Democratic leanings, and most cases were decided by the Democratic majority. However, the NLRB now reflects the policy of the Trump administration and its view of workers. Current Chair of the Board John Ring was sworn in on April 16, 2018; his term ends in 2022. The General Counsel of the NLRB has considered bold changes, including restructuring the Board’s regional office structure, limiting time to challenges ULP conduct, and rolling back policy advances that may have favored workers in past years.

In the current administration, more has changed than the physical structure of the Board. The manner in which the Board practices and the types of cases rolling out of the Board are also divergent.

The differences in Board rulings on a range of topics, including unfair labor practices, definition of employees and complaint procedure, are illustrated in the recent decisions discussed below.

Recent Decisions of Note Defining “Employee” or “Employer”

Recent cases interpreting what an “employee” is include the Uber case of Razak v. Uber Technologies Inc, U.S. District Court for the Eastern District of Pennsylvania, No. 2:16-cv-00573, where Plaintiffs were drivers alleging that Uber owed wages and overtime under the Fair Labor Standards Act, which is only available to employees. The district court ruled against the Uber drivers in 2018, ruling that they were independent contractors. The Plaintiffs have appealed to the Third Circuit Court of Appeals and the case has been briefed and argued and as of this writing there is no decision. See, USCA 18-1944.

An interesting matter involving graduate students at Brown University in 2004 yielded a similar fate. In a 3-2 vote, the NLRB held that graduate students at Brown did not have the right to unionize under the NLRB as they were not considered statutory employees. See, Brown Univ. & Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., Uaw Afl-Cio, 342 NLRB 483 (2004).

In another recent decision involving the definition of “employer,” the Board returns to interpreting challenges under a pre-Obama era standard called “direct control.” On December 14, 2017, the NLRB overturned its 2015 Browning-Ferris Industries decision, which had expanded the standard for determining joint employment status under the National Labor Relations Act (NLRA). The NLRB reverted to the previous standard, requiring an employer to have exercised direct control of employment terms over another entity’s employee to be deemed a “joint employer.” See, Browning-Ferris Indus. of California, Inc., 362 NLRB 1599 (2015).

Board Decision on the Duty to Bargain in Good Faith

When a union is certified, the NLRA compels the employer to the bargaining table with a legal obligation to bargain in good faith. The law requires holding meetings at reasonable intervals and exchanging proposals on wages, hours, and working conditions that affect represented employees. Courts have defined the “good faith” bargaining obligation as “an obligation ... to participate actively in the deliberations to indicate a present intention to find a basis for agreement ... a sincere desire to reach an agreement.” If an employer fails to meet this legal obligation, the union can file an unfair labor practice charge alleging bad-faith bargaining. See, NLRA, Sec.8(d) and 8(b)3.

Board Rulings on Collective Bargaining

A channel for public employees to approach management for collective bargaining did not take a foothold in this country until the 1960s. Before that, these employees relied on the rights of assembly afforded by the First Amendment, which allowed public employees to form associations that could lobby legislatures for improved salaries and working conditions. Today, collective bargaining occurs in three main categories: bargaining under the airline/transportation industry; public sector bargaining that involves municipal unions like police, fire and teachers; and private industries like the auto industry or trade unions like UAW or Teamsters.

Collective bargaining in the private sector takes place at the individual firm level. Unlike Europe, the U.S. does not support sectoral bargaining between peak-level social partners. Instead, unions usually bargain with management at the enterprise level. For large national groups like General Motors or General Electric, bargaining takes place at the national level on a “master agreement” followed by “supplemental agreements” at the company’s different facilities. The high point of collective bargaining in the U.S. came in the 1950s, when one-third of the labor force was covered by collective agreements. Since then a steady decline has taken hold.1

Despite the amount of bargaining that occurred in every sector in 2015, only 7.4 percent of private sector employees and 39.2 percent of public sector employees are covered by a contract.2 

The Board and Involvement in Union Elections

The state of Tennessee’s woes with a Volkswagen plant in Chattanooga are rife with relevant issues. Volkswagen has been accused of union busting, the UAW redefined the bargaining unit for the purposes of gaining a new election, and the election itself has been fraught with problems. The first election occurred at the plant in 2014; it did not gain the appropriate number of signatures and therefore the Union was not certified. A second election in 2015 was successful for 160 employees in a defined bargaining unit. During negotiations with the unit, Volkswagen failed to reach a contract with the union. In 2017, The UAW filed unfair labor practices against Volkswagen with the Board. The Governor of the State waded into the fray, ill-advisedly alleging that jobs would be lost if the union was certified. The UAW reports that the Chattanooga site is the only Volkswagen site worldwide without a union.3 However, in April of 2019, the first bargaining unit was disavowed by the UAW in a strategic attempt to redefine the bargaining unit to include more employees. The new election was slated for mid-June 2019. But in the final vote on June 14, 2019, the union was once again voted down; any unfair labor practices that had been filed by the UAW were withdrawn. UAW spokesperson Brian Rothenberg said after the vote that “our labor laws are broken. Workers should not have to endure threats and intimidation in order to gain the right to collectively bargain. The law does not serve workers, it caters to clever lawyers who are able to manipulate the NLRB process.” 4

Board Changes to Longstanding Practices in Labor and Employment Law

The Board has recently addressed:

  • Misclassification of workers as independent contractors
  • Employers’ rights to control access to private property 
  • Withdrawal of union recognition
  • The appropriate scope of bargaining units
  • Management’s right to make unilateral changes to terms and conditions of employment that are “covered by” a collective bargaining agreement.

Employers with unionized workforces should be paying close attention to Mv Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019), which abandons the long standing “clear and unmistakable waiver standard” with respect to changes in mandatory subjects of bargaining. Under that standard, absent a specific showing that a union had expressly waived its right to bargain over a particular policy or change in a mandatory subject, then implementing such a change without first giving the union a reasonable opportunity to bargain over the same would constitute an unlawful unilateral change under the NLRA.

The Board decision opened the door for the more flexible “contract coverage” standard, which effectively approves unilateral changes by employers. Under this new standard, arbitrators and the courts examine whether an employer’s change falls within the scope of a CBA provision that grants the employer the right to act unilaterally in the future. The NLRB ruled in MV Transportation, Inc. that it was appropriate to “give effect to the plain meaning of the relevant contractual language” by examining whether the parties’ CBA can be said to cover the employer’s disputed act. If so, then there will not be a violation of the Act.

This writer believes that it is a safe bet that labor lawyers, employers and employees will continue to see volatility in the actions of the Board expressed through its decisions judging by the substantive changes in procedures, personnel and case law that we have witnessed since 2017. 

Florence M. Johnson

Principal Attorney - Johnson and Johnson, PC - Memphis, TN

Florence M. Johnson is Principal Attorney with Johnson and Johnson, PC in Memphis, Tennessee. She is the Plaintiff’s Vice Chair for TIPS Labor and Employment Committee, a member of the TIPS Plaintiff’s Standing Committee and former Special Advisor to the Commission on Racial and Ethnic Diversity in the Profession

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