Key 2018-19 NLRB Rulings and Reversals Impacting Non-Union and Union Employers

Description

During 2018-2019, the NLRB issued several significant rulings and reversals. Counsel and HR should immediately review their clients' employment practices and adjust their advice when guiding union and non-union employers to avoid potential liability associated with the new rulings, while also evaluating how they may take advantage of the rulings.

In the wake of the Supreme Court's pro-employer decisions in Epic Systems and Lamps Plus, the NLRB recently allowed employers who were sued to require employees to sign agreements effectively preventing them from joining an existing class action.

In Prime Healthcare Paradise Valley, the Board broke with precedent and held that an employer does not have to permit the use of its public cafeteria by nonemployees for promotional or organizational activity. Of course, access still cannot be restricted in a discriminatory manner. It has also taken a decidedly pro-property owner turn in other decisions impacting leased properties.

In SuperShuttle, the Board affirmed the Acting Regional Director's finding that SuperShuttle's franchisees, who operate shared-ride vans for SuperShuttle, are excluded from the Act's coverage as independent contractors and dismissed the representation petition at issue. In doing so, the majority overruled FedEx Home Delivery, to the extent that it impermissibly diminished the significance of entrepreneurial opportunity in the Board's independent contractor analysis and revived an "economic dependency" standard that Congress explicitly rejected with the Taft-Hartley Amendments of 1947.

Employers with union contracts will find the Board's recent embrace of the "covered by" analysis in MV Transportation, Inc. when deciding refusal to bargain claims refreshing, as it reduces mid-term bargaining obligations and challenges by unions claiming the employer acted unlawfully as there was no clear and unmistakable waiver.

Listen as our authoritative panel of labor and employment attorneys discusses these and other rulings and reversals, other recent enforcement activity, the anticipated Supreme Court decision on mandatory arbitration agreements, potential pitfalls for employers, and best practices for employers to comply with NLRA obligations in an evolving legal landscape. The panel will explain what these rulings and reversals mean for employers moving forward and discuss anticipated NLRB action.