As a part of the Unified Agenda of Regulatory and Deregulatory Actions (“Unified Agenda”) issued Wednesday, May 22, 2019, the National Labor Relations Board (“NLRB”) announced its regulatory road map, indicating three areas of the National Labor Relations Act (“NLRA”) under which the agency intends to develop new or modified rules:
- access to an employer’s private property;
- standards to determine when students who perform work at a private college or university in connection with their studies are “employees” within Section 2(3) of the NLRA; and
- representation election regulations, including the Board’s current procedures for blocking an election petition after the filing of an unfair labor practices charge, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
Each of these issues has been the subject of abundant litigation before the NLRB in the recent past.
On the issue of employee access, the NLRB’s proposed rule likely will address the circumstances under which non-employee union organizers can access an employer’s private property when that property is otherwise generally open to the public, tackling issues from prior NLRB decisions including its 2010 decision in Roundy’s Inc., in which the NLRB found that a grocery store operator unlawfully prevented union organizers from handbilling at 26 of its stores.
The law concerning the ability of student teaching assistants and student research assistants at private universities to unionize has oscillated over the years. Prior to 2016, under the NLRB’s Brown University decision, student teaching assistants and research assistants were considered students first, and thus not able to organize under the NLRA. The NLRB’s 2016 decision in Columbia University overruled Brown University, and found that student teaching assistants and student research assistants at private universities are instead employees who can unionize (see our post here). The NLRB now appears poised to cement the issue through rulemaking. Presumably, under the current NLRB, the proposed rule will align with the prior decision in Brown University and return to the pre-2016 position that student assistants are students, not employees, and therefore cannot unionize.
Last, those that follow our blog will recall our extensive coverage of the NLRB’s change to its secret-ballot election rules (the “ambush” election rules), which we covered as those rules progressed from proposed to final in 2014 and 2015. The NLRB’s proposed rule is anticipated to modify and fine-tune those rules, rather than be a wholesale unwinding of them.
The status of each of these initiatives is noted to be in the “proposed rule stage.” The Unified Agenda is compiled twice annually by the Federal Office of Management and Budget Office, of the Office of Information and Regulatory Affairs, and reports on the actions administrative agencies plan to issue in the near and long term. It is anticipated that the NLRB’s proposed rules will be made public in September 2019. We will update you as these proposed rules take shape.