The first six months of 2019 have seen the NLRB reverse its recent trend of expanding its regulation of employer conduct. In January, the NLRB issued two decisions, the first of which narrowed the definition of “protected, concerted activity” and the second of which redefined the test for determining what individuals would be considered to be “independent contractors” who are not covered by the NLRA. Last week the NLRB reversed its own precedent to permit employers to limit a union’s access to areas of its workplace that are open to the public.
Prior to the first January decision, the NLRB would presume that any employee complaint made in a meeting was intended to contemplate group action and was, therefore, presumed to be protected concerted activity. The NLRB’s decision eliminated this presumption, finding that an individual’s complaint could not be assumed to be group action just because it was made in the presence of other employees. The Board set out five factors that must be considered to determine whether or not an employee’s complaint was group action, noting that all five factors need not be present to support an inference that the employee is engaging in group action.
The second January decision overturned a 2014 NLRB decision that made it harder for employers to show that an individual was an independent contractor and not an employee covered by the NLRA. Under the 2014 standard, the NLRB merely looked at whether or not the individual was “economically dependent” on a company, without considering other common law factors it had previously considered, and making it very unlikely that the Board would conclude that an individual was an independent contractor. With this January decision, the Board returned to its pre-2014 standard, taking into account a variety of factors including the relationship the company and the individual think they are creating and how much control the company actually has over the individual’s work.
Last week, the NLRB overturned a rule the Board created in 1981 limiting an employer’s ability to deny access to a union into areas of its workplace that are open to the public such as cafeterias or restaurants. In 1956, the United States Supreme Court ruled in NLRB v. Babcock & Wilcox Co. that employers could deny a union access to its property to solicit employees and distribute literature unless the union could prove that it had no other reasonable way to communicate with the employees or if the employer discriminated against the union by permitting other non-employees to solicit or distribute literature on company property. In 1981, the Board added a rule that a union could not be denied access to any area of an employer’s property that was open to the public as long as the union was not being disruptive, even if the Babcock factors were not present.
The Board overruled this longstanding “public space” rule last week, finding that a hospital did not violate the Act when it forced two union organizers to leave its cafeteria, even though that cafeteria was open to the public. In doing so, the Board returned to the pre-1981 standard, permitting employers to exclude a union from areas of its workplace that are open to the public unless the Babcock factors were proven.
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