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Three key NLRB decisions are in the pipeline

June 24th, 2014  |  David Stephanides

Later this year or into the next, the National Labor Relations Board could issue decisions on several issues it has signaled its intent, via invitations to file briefs, to decide. First up, the Board intends to take up the question of whether Northwestern University football players are “employees” who can unionize. In March 2014, an NLRB regional director ruled that grant-in-aid scholarship football players at Northwestern were statutory employees under the NLRA and directed a representation election to take place (the results of the election have been impounded). The regional director concluded that scholarship players who perform football-related services for the university under a contract for hire in return for compensation are subject to the employer’s control and are, therefore, employees within the meaning of the Act.

Next, the Board has solicited briefs regarding employees’ use of electronic communication in conjunction with their Section 7 rights and the question of whether the Board’s 2007 decision in Register Guard should stand. In the underlying case, an administrative law judge, relying on Register Guard, dismissed an allegation that an employer unlawfully prohibited use of its electronic equipment and email systems for activity unrelated to the employer’s business purposes.

The NLRB General Counsel and the Communication Workers of America, AFL-CIO, have asked the Board to overrule Register Guard and adopt a rule that employees who are permitted to use their employer’s email for work purposes have the right to use it for Section 7 activity, subject only to the need to maintain production and discipline.

Finally, the Board intends to address its joint employer standard. The Board has asked: Should the Board adhere to its existing joint-employer standard or adopt a new standard? And, if a new standard involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

With these decisions in the pipeline, and with a full Board sitting, it promises to be an interesting and invigorating time for those keeping an eye on the labor law landscape.

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