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Nov 2019
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November 25, 2019

The Pendulum Swings: A Look at Recent NLRB Decisions

The National Labor Relations Board (NLRB or Board) shifts its policies depending on the party in the White House. The NLRB’s decisions tend to be more pro-employee/pro-union with a Democratic president and relatively more employer-friendly with a Republican president.

Over the past two years, the “Trump Board” overturned or scaled back several “Obama Board” positions. The Trump Board also took aim at long-standing Board precedents. This trend has picked up speed over the past few months. 

For example, in three recent cases, the Board favored employers. These decisions demonstrate the high regard the Board has for property rights. 
 
  • In Bexar County Performing Arts Center Foundation, dba Tobin Center for the Performing Arts, 368 NLRB No. 46 (Aug. 23, 2019), the Board ruled that a foundation, which owned and operated a performance hall, did not violate the National Labor Relations Act (NLRA) when it prohibited symphony musicians from handing out leaflets during a ballet performance. The Board found the musicians were contract workers—not employees—of the foundation. Although they often performed at the hall, the contract workers could protest there only if they “regularly and exclusively” performed at the hall and did not have any other lawful way to express their views. 
  • In UPMC and its subsidiary, UPMC Presbyterian Shadyside, 368 NLRB No. 2. (June 24, 2019), the Board held that a hospital did not violate the NLRA by requiring two non-employee union organizers to leave its cafeteria. Before UPMC, union organizers could solicit employees in public areas of employer property, unless their conduct was disruptive. In UPMC, the Board rejected this “public space” exception. Instead, the Board concluded that the hospital was not discriminatory for two reasons. First, there was no evidence that the hospital knowingly allowed other non-employee organizational activity on its premises. Second, union organizers had other ways to communicate with employees.
  • In Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64, (Sept. 6, 2019), the Board held Kroger did not violate the NLRA when it removed union representatives from its shared parking lot. The union representatives were asking customers to sign a petition that opposed Kroger’s decisions to close one of its locations and transfer employees. Although Kroger had allowed other solicitors, the Board found that Kroger’s actions were lawful. The Board stated Kroger had an important property interest in its premises and the union’s activities were distinguishable from the civic, charitable and commercial activities Kroger had previously allowed. The Board said discrimination only exists when similarly-situated cases are treated in a dissimilar manner. The Board also stated that the analysis it used in Kroger (which did not involve union organizing), applied equally to non-employee organizing activity. 
These decisions should make employers feel more confident that they can regulate behavior of non-employees on their property. These decisions may also suggest how the Board will decide future cases involving employee use of employer property, such as using employer email systems for union-organizing activities.

Speaking of union organizing, in The Boeing Company, 368 NLRB No. 67 (Sept. 9, 2019), the Trump Board continued the shift away from pro-union policies. Specifically, the Board held that a group of two job types was not large enough to conduct a union election. The Board relied on its 2017 decision in PCC Structurals, Inc., 365 NLRB No. 160 (2017), which held that a group of workers can form their own union when they have a “community of interest” and their concerns are “sufficiently distinct” from those of coworkers. In Boeing, the Board clarified PCC Structurals by applying a three-part test. That test considers: (1) whether the members of the proposed unit share a community of interest; (2) whether the employees excluded from the unit have distinct interests that outweigh similarities with unit members; and (3) guidelines the Board established for unit configurations in specific industries.

In M.V. Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019), the Board held that an employer could change employment terms without first bargaining with its employees’ union. The Board held it would no longer apply the “clear and unmistakable waiver” standard to determine whether an employer’s unilateral change to employment terms violates a collective bargaining agreement. Under the “clear and unmistakable waiver” standard, the Board would find a violation unless the agreement unequivocally and specifically referred to the type of employer action at issue. This test was almost impossible to meet. Now, the Board will employ the less stringent “contract coverage” test. Under the contract coverage test, the Board determines if the change was within the scope of the agreement language granting the employer the right to act unilaterally. If it was, the Board will find no violation. If the agreement does not cover the action, the Board will find a violation except in two cases. There will be no violation if the employer demonstrates the union waived its right to bargain over the change. There will also be no violation if the employer’s act is justified by a compelling business reason, such as a dire financial emergency.  

These are just some of the Board’s recent decisions. The Board has also proposed new rules to address various issues, instead of handling them on a case-by-case basis. With the upcoming presidential election, it’s a safe bet we will see many more significant developments, so stay tuned. In the meantime, if you face potential organizing or bargaining challenges at your facility, your Warner Norcross + Judd labor attorney can help. 

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