As we have reported multiple times, the current majority at the National Labor Relations Board is actively looking for opportunities to give an advantage to labor in nearly all circumstances, including organizing and administrative litigation. The Board has sought amicus briefs in two cases where it is expected to overrule or modify its own precedent.

Purple Communications: Use of employer email system for organizing

Since the Bush-era Board's 2007 decision in Register-Guard, employees have no statutory right to use employer email systems for union organizing or concerted activity. That same issue is before the Obama-era Board now in Purple Communications, Inc., and the Board has invited interested parties to submit briefs, indicating that Register-Guard may be overruled.

In Purple Communications, a union filed unfair labor practice charges after losing a representation election, contending among other things that an employer's rule prohibiting use of its email system for personal matters was unlawful and grounds for overturning the results of the election. An administrative law judge set aside the election on other grounds but, based on Register-Guard, found that the employees had no right to use the employer's email system. (Apparently there was no evidence that the employer had discriminated against union activity by allowing other personal solicitations.) The Board's General Counsel sought review by the Board, arguing that Register-Guard should not control and should be overruled given changes that have allegedly taken place since the time of that decision. The General Counsel contends that employees increasingly, since Register-Guard was decided in 2007, use email as a primary means of communication in the workplace and that employee discourse is crucial to the exercise of Section 7 rights. Many employer and several labor interest groups weighed in with their own briefs by the deadline of June 16, 2014. After the parties respond to the amicus briefs and the NLRB issues a decision, the case may end up in a federal Court of Appeals.

Browning-Ferris: Joint employer standard

The approximately 30-year-old standard for finding a "joint employer" relationship, generally stated, is that entities are joint employers only if they have the ability to control or co-determine the employees' essential terms and conditions of employment. However, on May 12, the NLRB invited interested parties to submit briefs addressing various questions, including the following: "If the Board adopts a new standard for determining joint employer status, what should that standard be?"

In Browning-Ferris Industries (and Leadpoint Business Services), Browning-Ferris had contracted out to Leadpoint certain sorting and cleaning jobs at a recycling facility. A union seeking to organize the workers filed a petition with the Board asserting that both companies were the employers. The NLRB's Regional Director, applying the Board's current "joint employer" standard, determined that only Leadpoint was the employer and ordered an election. The union sought review, asserting that meaningful bargaining was impossible without the participation of Browning-Ferris, which supplied all the capital for the recycling operations and thus effectively controlled the Leadpoint employees' employment. The union contends that the current standard allows "the calculated restructuring of employment" by an entity such as Browning-Ferris and "insertion of a contractor to insulate itself from the basic legal obligation to recognize and bargain with the employees' representative." Employer groups can be expected to argue that entities should not have to recognize unions or bargain about terms and conditions of employment that they do not directly control.

The NLRB's decision may have a significant impact on entities with operations that are contracted out, that use leased or temporary agency employees, or that operate through franchise business models. Some entities may choose to restructure their operations.