Jason Koski/Cornell Marketing Group

ILR School alumnus Mark Pearce, chairman of the National Labor Relations Board, speaks Oct. 24 at Cornell Law School.

Social media policies, joint-employer business models and “nontraditional” employment models are among the new areas of focus for the National Labor Relations Board, said its chairman, Mark Pearce ’75, in a talk at Cornell Law School Oct. 24.

Pearce’s talk, “Change and Challenges: The NLRB After 81 Years,” covered the many transformations the board has gone through over its history, as well as some of the issues it is working on today.

“Cyberspace can be a very embarrassing thing,” Pearce said. “At the NLRB, we’re tasked with balancing free speech and valid employer concerns: security, privacy, trade secrets, harassment.”

One of the most important considerations, Pearce said, was whether an employee’s actions online constitute protected and concerted activity. To an extent, these determinations are relative to the workplace itself, he said. When looking at whether profane language loses protection of the act, the board investigates and considers critically whether the culture of the workplace breeds acceptability for such language.

Pearce referenced a recent case involving coal miners, whose dismissal for profanity was overturned when it was discovered that even worse language was used frequently by other employees as well as management.

Pearce spoke on how the rise of certain business structures and “nontraditional” employment models have changed the board’s focus in recent years. With the rise in the number of temporary workers and staffing agencies, as well as franchises, subsidiaries and other business types, Pearce said, the board’s job has increasingly become twofold.

“It’s not enough that we must be cognizant of [the employer’s] profile,” he said. “Under today’s business model, we’re asked to determine employment relationship. Not only do we have to figure out who the employee is, we have to figure out who’s their employer.”

Business models are such that now, more employers structure workplaces where they can call the shots without being liable for National Labor Relations Act violations, Pearce said. “Sometimes the structure is such that it is appropriate for us to leave them alone, and sometimes it’s not,” he said.

With so many temporary workers, the board needed to change its standards for who needs to be involved during collective bargaining. Pearce mentioned the recent Browning-Ferris Industries decision as an example of such a “joint-employer” case.

Pearce discussed a few of the challenges he has faced during the Obama administration, including the 2014 Supreme Court decision in NLRB v. Noel Canning to invalidate a series of NLRB decisions made when the five-member board included three contested Obama appointees.

“We’ve dealt with vacancies, resignations, constitutional challenges, government shutdowns, bills to defund the agency … but we have still soldiered on,” Pearce said.

The event was hosted by the Cornell Law School Labor Law Clinic and the ILR Worker’s Institute.

Robert Johnson ’17 is a writer intern for the Cornell Chronicle.