Linda R. Carlozzi. Jackson Lewis P.C. New York Office Jackson Lewis P.C.

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1 Linda R. Carlozzi Jackson Lewis P.C. New York Office Jackson Lewis P.C.

2 Strctre and Fnctions of the NLRB The Board s Chair, Phillip A. Miscimarra (R), term expires December 13, Member Mark Gaston Pearce (D), term expires Agst 27, Member Laren McFerran (D), term expires December 16, Leaving two crrent vacancies; and cstom bt not the National Labor Relations Act provides for 3 Members from the President s party, and 2 from the other or one or more independents. President has not yet nominated candidates for the crrent vacancies. A panel of 3 Members can decide cases; and by cstom, a Board majority of 3 Members can overrle precedent. The General Consel of the NLRB crrently Richard F. Griffin, Jr. is argably a more important positon than anything less than a majority on the Board Griffin s 4 year term ends November 4,

3 What will a Trmp NLRB Mean for Employers Handbooks, Work Rles and Policies The Obama Board emphasized a broad reading of protected, concerted activity and the rights of nrepresented/nion-free workers nder the Act - Work Rles, disparagement, recording and photography, social media rights - Broadened view of protected activity In Ltheran Heritage Village, 343 NLRB 646 (2004), adopted a new standard for determining whether facially netral policies, handbooks and rles wold be fond to nlawfl Wold employees reasonably constre the langage (of the rle or policy) to prohibit Section 7 activity? 3

4 What will a Trmp NLRB Mean for Employers? Handbooks, Work Rles and Policies William Beamont Hospital, 363 NLRB No. 162 (2016) Now Chair Miscimarra s (R) dissent calls for a different standard for evalating facially netral policies proposed balancing test: - Potential adverse impact of the rle on NLRA protected activity; and - Legitimate jstifications the employer may have for maintaining the rle. In Verizon Wireless, Inc., 365 NLRB No. 38 (Febrary 24, 2017) Chair Miscimarra reiterated his objection to the Ltheran Heritage Village test as one that defies common sense and calling for it to be replaced with the balancing standard articlated in his Beamont Hospital dissent. Capital Medical Center, 365 NLRB No. 69 (2016) on-site picketing by off-dty employees is eqated to solicitation and distribtion and employer bears the brden of proving, e.g., that prohibiting picketing in non-patient care areas of acte care hospital was needed to avoid disrption of health care operations or distrbing patients. 4

5 What will a Trmp NLRB Mean for Employers? Employee access to and se of employer systems for nion activity and other protected concerted activity. In Prple Commnications, Inc., 361 NLRB No. 136 (2014), the Obama Board expanded employee rights: we decide today that employee se of for stattorily protected commnications on nonworking time mst presmptively be permitted by employers who have chosen to give employees access to their systems: for nion-related commnications and other protected activity. In Verizon Wireless, Inc., 365 NLRB No. 38 (2017), Miscimarra also took direct aim at Prple Commnication, and rged a retrn to the former standard in Register Gard, that wold once again recognize the right of employers to control the ses of their own property, inclding their systems, provided they do not discriminate against NLRA-protected commnications by distingishing between permitted and prohibited ses along Section 7 lines. 5

6 What will a Trmp NLRB Mean for Employers? The Board s Standards for Determining Joint Employer Stats: In 2015, Browning-Ferris Indstries, 362 NLRB No. 186 (2015), the Board adopted a mch looser test for determining whether 2 companies are joint employers - No longer reqires showing of exercise of control over terms and conditions of employment of the co-employer s employees nexercised right to do so sfficient. - Expect the new Board to reexamine and retrn to traditional standards. Miller & Anderson, Inc., 364 NLRB No. 39 (2016) overrled Oakwood Care Center, 343 NLRB 659 (2004), and retrned to the standard in M.B. Strgis, 331 NLRB 483 (2000), which permits elections in nits inclding both directly-employed and jointly-employed employees withot the employers agreement. 6

7 What will a Trmp NLRB Mean for Employers The New Board or General Consel Can Be Expected to Revisit Decisions Over Who Is an Employee: Colmbia University, 364 NLRB No. 90 (2016) Overrling Brown University, 342 NLRB 483 (2004), the Board held that gradate teaching and research assistants are employees with the right to bargain collectively nder the Act. Northwestern University, 362 NLRB No. 167 (2015) The Board fond that scholarship football stdent-athletes are employees nder the Act bt declined to condct an election on policy gronds: other, comparable niversity football programs were predominately in pblic niversities not sbject to the jrisdiction nder the Act. 7

8 What will a Trmp NLRB Mean for Employers? The New Board Will Likely Reject the Obama Board s Position on Class Action Waivers and Mandatory Arbitration of Claims/Disptes in non-nion workplaces: The Obama Board s decision in Mrphy Oil, 361 NLRB No. 72 (2014), held that arbitration agreements that inclde class action waivers violate Section 8(a)(1) of the Act Board view is that they interfere with/prohibit forms of protected, concerted activity. U.S. Corts of Appeals are split on this isse opponents arge that Federal Arbitration Act permits employers to reqire individal arbitration and the U.S. Spreme Cort has granted certiorari to be heard in October 2017 term. Dish Network, LLC, 365 NLRB No. 47 (April 13, 2017), an employment arbitration agreement was a ULP becase it impliedly preclded an employee from filing a charge with the Board, and its confidentiality provision might be read to prohibit an employee s discssion of conditions of employment with co-workers; bt, it did not contain a class-action waiver and that ULP allegation was dismissed by the Board. Specialty Healthcare, 357 NLRB 934 (2011) The Board s micro-nit decision, placed mch greater weight on nion preference and extent of organization in determining the scope of a voting/bargaining nit and allowed small nits that historically wold have been fond inappropriate. 8

9 What will a Trmp NLRB Mean for Employers? Representation Elections Representation Elections are held mch more qickly since the 2015 Ambsh election rles took effect nions win rate p slightly in Ambsh elections rles (principally NLRB Rles and Reglations Sections , , and , 29 CFR ss ): Shortened time frames before election condcted after petition filed. Eliminated procedral and other safegards in interest of speed. New amendments to the election rles are possible bt wold take time BUT, nlike the Obama Board s approach to its amendments, these changes may be done withot notice and comment rlemaking becase they relate only to internal operating procedres and not parties sbstantive rights. 9

10 THANK YOU With 800 aaorneys pracecing in major locaeons throghot the U.S. and Perto Rico, Jackson Lewis provides the resorces to address every aspect of the employer/employee relaeonship. 10