United States: Recent NLRB Invitations For Briefs Forecast Changes In NLRB Precedents

When considering the issuance of decisions that overturn significant existing precedent or that otherwise might significantly affect the workplace, the National Labor Relations Board (NLRB) frequently will invite the submission of briefs from interested parties. Over the past two weeks, the NLRB has issued three such invitations for the submission of briefs in cases before it. These cases will decide:

  1. If employees have a right to use their employers' email systems for collective and union activity;
  2. Whether certain college athletes and other college students constitute "employees" under the National Labor Relations Act and, therefore, are entitled to unionize; and
  3. How to determine whether a company is considered a joint employer under the Act.

Given the NLRB's current composition, the decisions in these cases have the potential to change substantially existing NLRB precedents, expand the Act's scope and negatively impact employers.

An Employee's Right to Use an Employer's Email System

On May 1, 2014, the NLRB invited parties to submit briefs in Purple Communications Inc., in which the NLRB will decide the permissible scope of employees' use of their employer's email and other electronic communications for Section 7 protected concerted activity. The administrative law judge (ALJ) in that case held (in a decision consistent with the Bush-era NLRB's precedent in Register Guard, 351 NLRB 1110 (2007)) that an employer's restrictions on employee use of its email systems was not an unfair labor practice, as long as the actions were non-discriminatory and not based on Section 7 rights. The NLRB has sought briefs on a number of issues in Purple Communications, including what "standard(s) of employee access to the employer's electronic communication systems should be established" if it overrules Register Guard.

Former Board Member Wilma Liebman dissented from the Register Guard decision and has restated her disagreement with that standard on different occasions. The current NLRB general counsel and various Democratic board members similarly have stated or insinuated that they disagree with the Register Guard decision and believe that employees have a right to use an employer's email system much as they can use an employer's phone system. If the NLRB overrules the Register Guard standard and adopts the standard proposed by former Board Member Liebman, employers will lose at least some control over their email systems and their ability to limit employees' use of those systems for non-work-related purposes.

College Students as Employees Under the Act

On May 12, 2014, the NLRB called for briefs in its review of the controversial March 26, 2014 decision in the Northwestern University case, which made national headlines when a NLRB regional director held that Northwestern's football players were deemed employees under the Act and, thus, had a right to unionize. The NLRB is requesting briefs on a number of issues, including whether the NLRB should "adhere to, modify, or overrule the test of employee status" applied in Brown University, 342 NLRB 482 (2004), and, "if so, on what basis?" In Brown University, the NLRB held that graduate assistants were not "employees" under the Act because their relationship with the university was primarily educational, not economic.

The NLRB's decision could have important implications for private institutions of higher learning concerning their scholarship athletes and student graduate assistants. We addressed some of those potential concerns in a March 28 WorkCite article. Although primarily of interest to private institutions of higher education, the potential impact of the rulings could affect employers outside of academia as well.

Separate Companies Deemed Joint Employers Under the Act

On May 13, 2014, the NLRB invited parties to submit briefs in Browning-Ferris Industries, on several issues, including whether the NLRB should "adhere to its existing joint employer standard or adopt a new standard." The NLRB regional director in Browning followed the 30-year old precedent of TLI, Inc., 27 NLRB 783 (1984), which states that the determination of whether two entities constitute a joint employer under the Act requires an analysis of whether they share the ability to directly and immediately control or co-determine essential terms and conditions of employment, including matters such as hiring, firing, discipline, supervision and direction.

The invitation seeks briefs on whether the NLRB should adhere to this joint employer standard or adopt a new one. It also requests proposals for a new test and, if the test includes multiple factors, a list of factors that should be considered. Given the current NLRB composition, it is widely expected that the NLRB ultimately will adopt a more lenient standard for establishing joint employer status. In practical terms, such a development would increase the number of employees eligible to vote in elections and the number of employers subject to bargaining and unfair labor practice violations. This development should be of particular concern for companies that use staffing agency employees in addition to their own employees and to the staffing agencies themselves. In Browning-Ferris Industries, for example, the union is arguing that the proposed bargaining unit should include both the employer's employees as well as a staffing agency's employees who work at the same location.

Employer Take-Aways

After a relatively quiet period at the NLRB, we have been warning clients to expect an increase in important NLRB decisions that will benefit unions, increase the likelihood of unionization, and increase the risk of employer violations of the Act. Some of the decisions will result in the overturning of long-established NLRB precedent. The recent invitations for briefs in rapid succession further indicate that a newly active NLRB will be issuing decisions that significantly affect employers in the near future. Employers should pay close attention to developments at the NLRB and begin developing strategies to adjust to the NLRB decisions – those likely to come as well as those already issued by the NLRB.

The NLRB is accepting briefs in Purple Communications, Inc. until June 16, 2014, and in Northwestern University and Browning-Ferris Industries until June 26, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions