LABOR LAWRONALD TURNER

A.A. WHITE PROFESSOR OF LAWUNIVERSITY OF HOUSTON LAW CENTER

Part I, Section II—NLRB Organization

• The National Labor Relations Act of 1935, as amended• The Board: five members appointed by the President and

confirmed by the Senate [pp. 73-74]• Political composition: 3 members of President’s political party,

2 from other party• Current members: Chairman John F. Ring (R) and Members

William J. Emanuel (R) and Marvin E. Kaplan (R); 2 Democratic seats are vacant

• General Counsel Peter B. Robb

Part I, Section II—NLRB Jurisdiction

• Covered enterprises [pp. 57-58]• Excluded employers [pp. 58-59]• “Employee”: “The term ‘employee’ shall include any

employee” (NLRA Sec. 2(3))• Excluded workers: agricultural laborers; domestics;

individual employed by parent or spouse; independent contractors; supervisors; managers; confidential employees [pp. 61-72]

Part I, Section II—NLRB Jurisdiction• Page 59: Excalibur Charter School, Inc., 366 NLRB No.

49 (2018) (the Board affirmed jurisdiction over a charter school); International Business and Education, Inc. v. NLRB, 905 F.3d 770 (5th Cir. 2018) (charter school is not a political subdivision of the state and was subject to the Act).

• Page 65: SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019): overruling 2014 FedEx decision, Board states that it is likely to find independent-contractor status when workers are afforded significant entrepreneurial activity

Part I, Section II—NLRB Jurisdiction• Page 66, note 4: Uber and Lyft drivers

• Board General Counsel has concluded that drivers are independent contractors and not employees in light of the significant entrepreneurial control they exercise (Advice Memo (Apr. 16, 2019)• Note that companies and not the drivers control all financial

aspects (pricing, etc.) except for customer tips.• California’s AB5 bill makes drivers employees

• Page 72: medical residents and graduate assistants• Page 72: student-athletes on scholarship

Part I, Section II—Procedure

• Unfair labor practice cases [pp. 74-81]• Representation cases [pp. 81-87]

Part Two, Section 1—Protecting The Right Of Self-Organization

• NLRA Section 7: “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . .”

• NLRA Section 8(a)(1): employer may not “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” in Section 7.

Part Two, Section 1: Protecting The Right Of Self-Organization

• Republic Aviation Corp. v. NLRB (U.S. 1945)• Facts; the employer’s no-solicitation rule

• The Court upholds the Board’s Peyton Packing presumption [p. 93, p. 94, footnote 10]: “Working time is for work” and an employer may ban union solicitation during working hours so long as the rule was not adopted for discriminatory purposes.

• The employer may not ban solicitation outside working hours and during an employee’s own time, although on company property, unless there is evidence of special circumstances making the no-solicitation rule necessary to maintain production or discipline. [p. 94, footnote 10]

No Solicitation And Distribution Rules• “In order to prevent disruption in the operation of the plant,

interference with work and inconvenience to other employees, solicitation for any cause, or distribution of literature of any kind, during working time, is not permitted. Neither may an employee who is not on working time, such as an employee who is on lunch or on break, solicit an employee who is on working time for any cause or distribute literature of any kind to any person. Whether on working time or not, no employee may distribute literature of any kind in any working areas of the plant.” Our-Way, Inc., 268 NLRB 394 (1983)

• Hospital solicitation/distribution rules [p. 95]

Part II, Section 1: Protecting The Right Of Self-Organization• Cintas Corp. v. NLRB (D.C. Cir. 2007)

• The employer’s confidentiality policy• The Board, per Martin Luther Memorial Home, held that

employees could reasonably interpret the policy as restricting their Section 7 right to discuss wages and working conditions [p. 101]

• The court rejected the employer’s factual defense [pp. 100-102]

• The court defers to the Board’s decision and the reasonable inferences it drew from the evidence [p. 102]

Part II, Section 1: Protecting The Right Of Self-Organization

• Page 104, note 3: overruling prior decisions, Apogee Retail LLC, 368 NLRB no. 144 (2019), holds that work rules requiring confidentiality during workplace investigations are presumptively lawful in light of the employer’s legitimate interest in investigating alleged employee misconduct (theft, harassment, etc.) and need to assure employees that reports of misconduct will be held in the strictest confidence by all concerned.

Part II, Section 1: Protecting The Right To Self-Organization

• Page 104, note 3: in The Boeing Company, 365 NLRB No. 154 (2017), the Board overruled Martin Luther Memorial Home’s “reasonably construe” standard. Although the company’s no-camera rule could adversely impact employees’ Section 7 rights, that impact was outweighed by the employer’s security protocols and effort to limit the risk of terrorist attack, protection of proprietary information, and other business needs.

• Applied retroactively to all pending cases

Part II, Section 1: Protecting The Right Of Self-Organization• Lechmere, Inc. v. NLRB (U.S. 1992)

• Facts; issue: access rights of nonemployee union organizers• NLRB v. Babcock & Wilcox Co.’s inaccessibility exception

[p. 108]; Jean Country [p. 110]• Court: “Access to employees, not success in winning

them over, is the critical issue—although success, or lack thereof, may be relevant in determining whether reasonable access exists.” [p. 113]

• Held: the Board erred in concluding that the employer committed a ULP [p. 113]

Part II, Section 1: Protecting The Right To Self-Organization

• UPMC Presbyterian Hospital, 368 NLRB No. 2 (2019): reversing longstanding precedent, the Board finds that an employer does not have a duty to allow use of its facility (in that case, a cafeteria on the employer’s private property that was open to the public) by nonemployees for promotional or organizational activity, absent evidence of discrimination between nonemployee union representatives and other nonemployees.

LABOR LAWPart I, Section II—NLRB OrganizationPart I, Section II—NLRB JurisdictionPart I, Section II—NLRB JurisdictionPart I, Section II—NLRB JurisdictionPart I, Section II—Procedure Part Two, Section 1—Protecting The Right Of Self-OrganizationPart Two, Section 1: Protecting The Right Of Self-OrganizationNo Solicitation And Distribution RulesPart II, Section 1: Protecting The Right Of Self-OrganizationPart II, Section 1: Protecting The Right Of Self-OrganizationPart II, Section 1: Protecting The Right To Self-Organization Part II, Section 1: Protecting The Right Of Self-OrganizationPart II, Section 1: Protecting The Right To Self-Organization