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Labor Board Plans Rules on Worker Protests, Student Organizing (1)

May 22, 2019, 4:27 PMUpdated: May 22, 2019, 9:48 PM

The National Labor Relations Board plans major new rulemakings in 2019 that could curb union power while it also continues to work on a controversial regulation to limit companies’ liability for collective bargaining and unfair labor practices.

The labor board unveiled an ambitious new slate of proposed rules in its spring 2019 regulatory agenda. That includes a proposal to create new standards on worker picketing and other collective actions on an employer’s private property. Another rule would determine when student workers are covered by federal labor laws that grant private sector workers organizing and union rights. The Republican-majority board’s eventual rules are likely to be favorable to businesses.

The board’s high-profile proposal to define “joint employment” remains listed in the “Long-Term Actions” section of the NLRB’s agenda. That designation is typically reserved for rules the NLRB doesn’t plan to get to in the coming year. The closely watched policy is expected to have a significant impact on franchise business models, gig economy businesses such as Lyft and Postmates, and companies that rely on contractors.

The multiple proposals reflect the board’s pivot to making labor and workplace policy via the formal rulemaking process. The agency has traditionally determined the contours and bounds of the National Labor Relations Act by interpreting the law in individual case decisions. Those rulings are considered easier for future boards to undo as majority control shifts among political parties.

“The Agenda reflects the Board majority’s strong interest in continued rulemaking,” Chairman John Ring (R) said in a statement announcing the new regulatory agenda. “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

Rule Affects Student Organizing Nationwide

The NLRB has flip-flopped on student employment status multiple times, with the board granting student assistants the right to unionize in 2000, taking it away in 2004, and reinstating it in 2016. Those decisions depended on which party controlled the board, with Democrats favoring broader unionization rights for graduate and other student workers, while Republicans have opposed them.

The rules have a major effect on drives around the country to unionize graduate students at various colleges and universities.

This latest announcement that the agency will address the employment status of college students via rulemaking comes after labor organizations stopped trying to unionize through the Republican-controlled board—the typical and only federal forum private sector workers can petition to form a legally recognized union.

Unions withdrew pending petitions that would have given the board a chance to overturn its 2016 ruling that student assistants at Columbia University and elsewhere are employees covered by federal labor laws. The board’s pivot to a rulemaking means the current policy is likely to change in any case.

“The board under George Bush found that student assistants and graduate assistants are not employees, and then the Obama board reversed that, so I’m not so surprised this board’s looking at that Columbia University case to make a change,” Jerry Hunter, a management-side partner at Bryan Cave LLP and former NLRB general counsel, told Bloomberg Law.

Rule Could Affect Organizing Strategies

“NLRB rulemaking in these areas will go a long way in providing employers, unions and the public at large with not only the advance information concerning the Board’s view with respect to these issues, but also hopefully guidance as to what the law is,” Hunter said.

“We don’t know what the board will ultimately do” with regard to student organizing rules, William A. Herbert, director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, told Bloomberg Law.

“It’s an administrative process, so you can’t make assumptions,” Herbert said. “But in light of the decisions that have been coming down from the agency in the last two years, it certainly seems like they’ll be looking to overturn Columbia, or at least modify it.”

Herbert suggested that the eventual rule could push employees to hold more strikes.

“Remembering labor history, before there was an NLRA, strikes were the means by which employees were able to get voluntary recognition” for their unions, Herbert said.

“The more the NLRB shrinks its jurisdiction over certain workers, whether its graduate workers or independent contractors, the more likelihood employees will utilize strikes as a tool to gain recognition.”

The Columbia ruling gave unionization rights to students at private universities. Union rights for student workers at public colleges depend on state-level labor laws.

The board aims to issue the student employment status proposal in September, according to the regulatory agenda.

Protests on Employer Property

The NLRB’s general counsel, Peter Robb (R), has also been moving to tighten rules about when and how employees can picket and hold other types of employer protests.

Member William Emanuel (R) commented on the issue of union and worker action on employers’ private property at a February conference held by the American Bar Association.

“The courts and the board have issued a vast number of decisions affecting the right of employees and unions to engage in union activity on the private property of an employer. This has resulted in an extremely complicated set of rules that are very difficult, we feel—I feel—for employers, employees, and unions to completely understand and to follow,” Emanuel said.

The rules also tend to vary as the NLRB majority—the board has five seats—changes, depending on whether a Republican or Democrat is in the White House, Emanuel said.

“All of this has resulted in many inadvertent violations of the act and substantial litigation expenses. It’s our preliminary view that we could avoid much of this by adopting a rule that clearly defines the rights of employers, employees, and unions in this complex area of the law,” he said.

Construction Industry Policy Teed Up

Ring has said he’s a “big proponent” of rulemaking. Some business representatives have long argued that the NLRB should issue more formal rules because the federal rulemaking process creates more solid and longer-lasting policy than regulating via case law.

The process of issuing formal rules is complicated though, and subject to more oversight than when the board establishes new precedents in cases.

“The board identified quite a number of issues here, so clearly the agency has its work cut out for it,” Hunter said.

“That said, addressing things through rulemaking gives the board an opportunity to get a variety of comments and diversity of opinion on the matter, which will educate all of the members on the various possible impacts of rulemaking on a particular issue to the stakeholders,” he said.

The agency’s spring agenda also lists what appears to be a new proposal with major implications for businesses and unions in the construction industry.

The proposal would modify a current policy that allows construction companies to withdraw from what’s known as a pre-hire relationship once a labor contract expires, but mandates that an existing union won’t be ousted in that scenario unless it loses the support of a majority of the workers.

The board pivoted to a rulemaking on that issue after a union in Pennsylvania withdrew a pending case where the members were apparently considering changing the policy via case-law.

The agenda also lists two other deregulatory actions the NLRB previously announced.

Those include changes to the NLRB’s “blocking charge” policy, which calls for elections to be paused if workers or unions file complaints alleging employers interfered with the elections, as well as changes to its “voluntary recognition bar,” a policy that workers must wait at least six months before they can file petitions seeking to oust a union their employer had voluntarily recognized as their bargaining representative.

To contact the reporters on this story: Hassan A. Kanu in Washington at hkanu@bloomberglaw.com; Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Phil Kushin at pkushin@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com