Is Change in the Air at the National Labor Relations Board?

Invitations for Briefs Could Signal Change in Precedent  

It is no secret that the National Labor Relations Board (NLRB) has been expanding its authority into union-free workplaces and is on the verge of issuing major decisions that will implement changes which benefit unions, increase the likelihood of unionization, and make it easier for employers to be found in violation of the National Labor Relations Act (NLRA). If the NLRB's recent requests for public input are any indication, these changes may soon be upon us.

When the NLRB invites submission of briefs from interested parties, it often signals forthcoming decisions that could overturn significant existing precedent and have a major impact on the workplace. In past weeks, the NLRB has issued three such invitations requesting briefs on the issues of:

• An employee's right to use an employer's e-mail system for protected, concerted activity (this applies to both union and non-union employers and could include solicitations to join a union)
• Can separate companies be deemed joint employers for purposes of unionization
• Are college students (like Northwestern University football players), who receive scholarships or other benefits with monetary value, properly deemed employees under the Act

Given all of the current members of the NLRB were appointed by President Obama, who has repeatedly stated his support for unions and unionization, the decisions in these cases have the potential to further expand the NLRA's scope and negatively impact businesses. If these predictions are correct, companies may be faced with limits on how much they can restrict their employees' use of company e-mail systems, as well as having to provide a more lenient standard for joint employer status. And institutions of higher learning could be dealing with a whole new class of employees!

Organizations should pay close attention to these trends, begin reviewing their personnel policies so as to avoid the expanding liability and start developing strategies to adjust to upcoming and existing NLRB decisions.

If you have questions about how these decisions can impact your organization, please contact your Elarbee Thompson attorney, a member of the firm's Labor Relations Practice Group or respond to this email.