A Battle for the Soul of the NLRB?

By By Mark J. Swerdlin & Fiona W. Ong - Shawe & Rosenthal LLP

April 27, 2017

For several years we have watched the National Labor Relations Board take ever-more aggressive positions that (in our view) ignore the realities of the modern-day workplace and business operations (or really, common sense). Think handbook cases, Facebook cases, email cases….. you get the picture.  Republican members of the Board have vehemently protested the actions of the Democratic majority, to no avail. So with the change to a Republican administration and the recent appointment of the sole Republican Board member – Philip Miscimarra – first to the Acting Chairman and now regular Chairman role, we had great expectations that the Board would return to a more balanced (i.e. sane) perspective.

But it appears that even under the new Republican administration, representatives of the National Labor Relations Board continue to seek to expand its definition of employees (and consequently the Board’s reach). We previously blogged about the NLRB General Counsel’s memo in which he opined that scholarship football players in Football Bowl Subdivision (FBS – formerly known as Division I) private sector colleges and universities are employees under the National Labor Relations Act with the rights and protections of the Act. And the most recent example of this overreach is a Regional Director’s decision to order a union representation election for a unit of undergraduate student resident advisors at George Washington University.  (I’m not sure about GWU, but I don’t recall the RAs on my dorm floor doing much work unless you count trying to steal the freshmen students’ girlfriends.)

The Board had previously rejected attempts by undergraduate students to unionize, but this case builds on the NLRB’s 2016 Columbia University decision, in which graduate student teaching and research assistants were deemed to be employees within the meaning of the National Labor Relations Act, as we discussed in our previous blog post, “The NLRB Changes Its Mind Again.” Reversing a twelve-year precedent that looked at the primary purpose of the relationship, the Board had stated that the existence of an economic component to the relationship, regardless of how slight as compared with other aspects of the relationship, was sufficient to establish employee status. In the present case, resident advisors receive a waiver of housing expenses as well as a stipend, and these economic benefits triggered an employment relationship, according to the Regional Director.

We expect this case to be escalated to the Board itself, which is awaiting the appointment of two more members. While we could confidently predict that an Obama-era Board would have upheld the Regional Director’s decision, that’s not so certain with the Board under President Trump. We would expect that Chairman Miscimarra and his to-be-named Republican colleagues will work to return the parameters of the Act back to a more reasonable place – but it appears that they will be battling internal forces that seek to expand those very same parameters.

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