Tag Archive for: NLRB

NLRB General Counsel issues Memo attempting to clarify Board decision regarding confidentiality clauses in severance agreements

The NLRB General Counsel issued Memorandum GC 23-05 attempting to clarify the Board’s recent decision in McLaren Macomb regarding confidentiality clauses in severance agreements.

The NLRB General Counsel’s Memo can be summarized as making the following broad points:

  • Severance agreements are not prohibited in general.
  • Severance agreements with confidentiality clauses that are narrowly tailored to protect “proprietary or trade secrets information” are enforceable.
  • The NLRB General Counsel’s office will pursue charges against employers who merely offer a severance agreement with confidentiality language that her office believes violates section 7 of the NLRA, whether or not the individual signed it.
  • The NLRB General Counsel’s office will pursue charges against employers involving severance agreements predating McLaren Macomb, in other words, her office will view the Board’s decision as retroactive.
    • Although the Memo did not address the statute of limitations, it is noted that NLRA violations generally carry a 6-month statute of limitations.
  • Because Section 7 of the NLRA protects both unionized and non-unionized employees, the NLRB General Counsel’s office will pursue charges against employers it believes have violated McLaren Macomb even where no union or actual union-organizing activity is involved.
  • When the NLRB General Counsel’s office chooses to prosecute an employer what it believes is a McLaren Macomb violation, the Memo states her office will seek only to strike the violative language, not the release itself or other portions of the severance agreement.

Unfortunately the NLRB General Counsel’s Memo raises additional questions and fails to answer many questions raised by the Board’s ruling in McLaren Macomb, including at least and without limitation the following:

  • The NLRB General Counsel’s Memo suggests her office may take a dim view of severance agreements that attempt to waive traditional labor protections and claims under the NLRA. Likewise, it suggests that her office will look restrictively at releases as to claims arising after the date of the severance agreement.
  • The NLRB General Counsel’s Memo failed to provide any kind of sample language of what her office will accept as permissible confidentiality language in a severance agreement.
  • The NLRB General Counsel’s Memo states that a savings clause “may be helpful” but failed to explain further what kind of savings/disclaimer language would be helpful to what extent. For example, since the Memo states her office will seek only to strike language to the extent violative of section 7 of the NLRA, it seems unlikely that any enforcement action would be appropriate for her office if an employer, confronted by an individual asserting a section 7 issue or even filing an NLRB charge, were to review its severance agreement (or even proffered but unsigned severance agreement), then note the presence of savings language and agree that nothing in the draft would be used in violation of section 7, especially where the employer agreed to amend or even revise language.
  • The NLRB General Counsel’s Memo said that it would review but failed to explain when or even if other clauses besides confidentiality provisions can be violative of McLaren Macomb. Such adjacent clauses might include non-disparagement provisions, non-compete clauses, non-solicit clauses, no-poaching clauses, even broad general release clauses and covenants not to sue. For example the NLRB General Counsel’s Memo suggested, without explaining, that her office might view at least some cooperation clauses as running afoul of section 7.
    • It appears that even under this new restrictive approach confidentiality provisions that provide that the terms of the severance agreement, including the amount of severance, are permissible. It so appears because in her Memo, the NLRB General Counsel stated that NLRB OM Memo OC 07-27 remains in effect (“Yes. OM 07-27 is consistent with the McLaren Macomb decision.”), which in turn so provided (see its section 3).
  • The NLRB General Counsel’s Memo failed to explain how it will view such provisions when requested by the individual, especially in states with so-called Me-Too laws that provide for the enforceability of such provisions when requested by the individual.
  • The NLRB General Counsel’s Memo notes that supervisors are generally not protected by the NLRA but hypothesized that a supervisor might somehow become protected if they refused to extend a draft severance agreement that the supervisor believed was violative of McLaren Macomb.

The Board’s decision in McLaren Macomb is likely to be appealed and subjected to further litigaiton, as is this Memo.

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NLRB enhances ability to present Scabby the Rat

In Lippert Components, Inc., the NLRB held that “Scabby the Rat” — the common nickname for a giant inflatable rat balloon often up to twelve feet tall, that is transported and displayed from the bed of a truck, which can in turn be parked curbside or in other public parking — is akin to a handbill, not picketing, and, as such, enjoys enhanced protections under the NLRA.

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NLRB permits micro units

In American Steel Construction the Board reversed a Trump-era ruling regarding micro units, allowing the Board to certify elections in union organizing campaigns of sub-groups of workers so long as the sub-group is “readily identifiable as a group based on job classifications, departments, functions, work locations, skills or similar factors.”

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NLRB holds that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA

Overruling Trump-era Board precedent, the NLRB, in McLaren Macomb, held that separation agreements containing broad nondisclosure, nondisparagement or confidentiality language may violate Section 7 of the NLRA, which protects both unionized and non-unionized workers (and which the Board is increasingly viewing as protecting non-employee contractors as well). The Board will now review such language to determine if, on its face (and apparently possibly without need of an actual witness to so testify), the language might provide a chilling effect on a (again potentially purely hypothetical) individual’s ability to discuss their wages, hours or working conditions with other workers, the NLRB or even the public in general. The Board did not provide guidance on how it will review such language or what specific language it might approve, but it seems it will be a narrower view than Republic-appointed Boards might utilize.

The main disagreement between the current Biden-era Board and the prior Trump-era Board appears to be — in addition to the strictness of their language review — their inability to agree on whether a separation agreement (also known as a severance agreement) is by its nature something that relates to wages, hours or working conditions of employment. The Trump-era Board (and the dissenter in this McLaren Macomb decision) viewed severance as, by its nature, being inherently not related to the wages, hours or working conditions of employment.

The issue is likely to proceed to litigation in the courts. However, McLaren Macomb sets forth at least the general approach that the current NLRB will take when reviewing separation agreements.

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NLRB permits consequential damages as possible remedies

In follow-up to the prior post regarding NLRB General Counsel Memorandum 21-06, the Board has authorized the award of at least some no previously recognized remedies under the NLRA. The case was Thryv Inc. The Board did not specify particular aspects of relief, saving that for lower decisionmakers in particular cases. Without calling them “consequential damages,” which is a commonly used legal term, the Board held in this 3-2 decision that these new remedies would be available if the monetary losses were the “direct and foreseeable result of a respondent’s unfair labor practice.” The majority did take pains to note that these new remedies would not include “pain and suffering” or other emotional distress.  As with the NLRB General Counsel Memorandum, the Board’s ruling is likely to draw litigation on review.

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NLRB General Counsel pushes for enhanced remedies under NLRA

In NLRB General Counsel Memorandum 21-06, the NLRB General Counsel has ordered Board offices to seek remedies never before recognized as available under the NLRA, including the following, each subject to circumstances described in the Memo:

  • Enhanced consequential damages
  • Including even front pay
  • And reimbursement of union organizing costs
  • Mandating hires
  • Lost wages to individuals not authorized to work in the United States.

Attempts to seek those not previously recognized remedies are sure to be subject to litigation, including over the constitutionality of the General Counsel’s office ability to expand the NLRA without congressional legislation or even regulatory rulemaking.

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NLRB permits wearing of union insignia absent special circumstances

In Tesla, Inc., the NLRB reversed a Trump-era decision re union insignia, returning to prior caselaw holding that employers must allow employees to wear union insignia despite dress codes and uniform policies, unless “special circumstances” require otherwise. Whether special circumstances exists will depend on whether, in each case’s circumstances, the union insignia “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employee has established, or when necessary to maintain decorum and discipline among employees.”

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NLRB reimposes requirement to keep dues checkoff clause in effect following expiration of CBA

The Biden Board has reversed a ruling by President Trump’s NLRB, returning to the Obama-era ruling, which had in turn reversed longstanding precedent regarding whether dues need to continue to be paid to a union even after the CBA requiring dues payment (a “dues checkoff” clause) had expired. Historically, the ruling had been, since at least the NLRB’s 1962 ruling in Bethlehem Steel that dues checkoff clauses expired with the CBA and, therefore, a company could stop withholding and paying them to a union. President Obama’s majority-appointed NLRB reversed that; then President Trump’s reversed it back, and now the current Board has returned to the Obama-era ruling, holding that dues must continue to be paid, with the Democrat-appointee Board members saying: “Payments via a dues-checkoff arrangement are similar to these other voluntary checkoff arrangements, and dues-checkoff arrangements should survive contract expiration just as other voluntary checkoff arrangements do.” The current decision is Valley Hospital Medical Center.

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GSA permits union access on Executive Branch’s federal property

The GSA issued a final rule that permits unions to enter onto the properties owned or leased by the federal Executive Branch, in order to contact non-union and already unionized workers employed by the federal government or even its contractors. The rule is intended to assist unions in organizing campaigns and in administering existing CBA’s. The rule does not apply to private property owned by such contractors, nor to state or city-owned properties, nor to federally owned/leased properties of the Judicial or Legislative branches.

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Third Circuit reverses NLRB over facetious tweet

As noted in a previous post, the NLRB earlier held a company liable for its CEO’s personal tweet intended as an obvious joke. The NLRB had viewed as irrelevant the CEO’s and even the employees’ statements that the tweet was meant as a joke. On appeal, the Third Circuit, considering the CEO’s First Amendment rights, reversed the NLRB holding there was no evidence to support its finding that the tweet could have been interpreted as a threat by a reasonable employee, especially where two employees said they took it as a joke and the comment was made without any actual threatening action having been taken and without any history of labor-management tension.

For starters, FDRLST Media is a tiny media company. Its six employees (not including Domenech) are writers and editors. The tweet’s suggestion that these employees might be sent “back” to work in a “salt mine” is farcical. The image evoked—that of writers tapping away on laptops in dimly-lit mineshafts alongside salt deposits and workers swinging pickaxes—is as bizarre as it is comical. So from the words of the tweet alone, we cannot conclude that a reasonable FDRLST Media employee would view Domenech’s tweet as a
plausible threat of reprisal.

. . .

The National Labor Relations Act grants the National Labor Relations Board vast authority to investigate charges of unfair labor practices, even when charges are filed by parties who are not personally aggrieved by the alleged practice. But the Board’s authority to find an unfair labor practice is not unlimited. Here, the Board spent its resources investigating an online media company with seven employees because of a facetious and sarcastic tweet by the company’s executive officer. Because the Board lost the forest for the trees by failing to consider the tweet in context, it misconstrued a facetious remark as a true threat. We will accordingly grant FDRLST
Media’s petition, set aside the Board’s order, and deny the Board’s petition for enforcement.

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NLRB General Counsel warns, if OSHA rule re vaccine-or-test becomes active again, unionized employers will have duty to give notice and opportunity to bargain over discretionary aspects of the rule

The NLRB issued Memorandum OM 22-03 opining that, if OSHA’s vaccine-or-test rule implementing President Biden’s mandate for employers of 100 or more is ever unfreezed by the courts, then employers with unionized workplaces will have a duty to give their unions notice and an opportunity to bargain. While companies cannot be required to negotiate over whether to comply or any nondiscretionary aspects of the rule, they will be required to give notice and an opportunity to bargain over discretionary aspects of the rule.

Although the General Counsel does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.

Many aspects of OSHA’s now-frozen rule remain unclear, but this seems to include the items specifically mentioned by OSHA in its rule and its preface as being subject to potential collective bargaining:

  • Whether the employer will adopt a mandatory vaccine-or-test policy or OSHA’s permitted alternative policy that would permit employees to opt out of vaccines and instead wear masks and be tested.
  • Whether to adopt one kind of policy for unionized workers even though another was adopted for non-union workers.
  • Whether employees will bear some or all of the costs of vaccines, masks, tests, etc.
  • How much paid leave will be provided to be vaccinated.
  • How much paid leave will be provided to recover.
  • How much paid leave, if any, will be provided for time off when employees who test positive are removed from work.
  • Whether any additional safety measures will be taken related to COVID-19 in the workplace.

Employers of 100 or more with unionized workplaces will need to continue to monitor developments in the courts and be prepared to provide notice and an opportunity to bargain if the OSHA rule is ever unfreezed by the courts.

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NLRB confirms unionized employers may adopt handbook

In Stericycle, Inc., 370 N.L.R.B. No. 89 (2/17/2021), the NLRB held that an employer may adopt and issue handbooks to its workforce, including unionized bargaining unit members, even where that language on its face is contrary to the union’s collective bargaining agreement, so long as it does not purport to apply that inconsistent language to the bargaining unit. In Stericycle, the company had not historically distributed its handbook to the union’s bargaining unit members. There had been two versions of the handbook over the years, and neither had been given to those workers. When a third was developed, its distributees did include the bargaining unit workers.  Unfortunately the handbook did not contain a clear disclaimer that the CBA would control in the case of any conflict with the CBA; rather, it contained a disclaimer to the effect that “some benefits may not apply to union team members and in some cases the policies may be impacted by collective bargaining agreements.” The union claimed its bargaining unit employees were indeed “impacted,” as the union pointed out many policies were contrary to the CBA. To complicate the situation further, the company had not involved the union or even given the union notice and an opportunity to discuss the handbook before implementing it. In a hotly split decision, the Board voted to reverse the lower decision and held that the company had not violated the NLRA, reasoning that the company’s disclaimer language was clear enough to suggest that the CBA would control and further that the union had failed to produce any evidence that the company had intended otherwise.

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First Circuit strikes union bargaining unit with no members

Although the Board can recognize protected activity by one worker under the “Army of One” theory, it may not certify a union to represent a bargaining unit with no members, held the First Circuit. In the case, the union petitioned to represent a group of workers, and eventually won the right to do so, but by the time the Board certified the bargaining unit, the unit’s work had ended, there were no more such workers and the evidence confirmed there would be no more such workers. While Board precedent allows a certification for a unit of none in unusual circumstances where such work might resume (for example, in some seasonal worker cases), the First Circuit held it does not permit certification when there is no such likelihood.

Source: NLRB v. Wang Theatre, Inc., case no. 20-1157 (1st Cir. 11/30/2020).

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Hah-hah, just kidding. Not so much, says Board

The National Labor Relations Board held a company in violation for its CEO’s joke on the CEO’s personal Twitter stream. The CEO of the company posted, “FYI (company twitter handle) first one of you tries to unionize I swear I’ll send you back to the salt mine.” The employees who submitted evidence agreed the tweet was a joke. The Board disagreed and held the tweet was on its face a threat of anti-union retaliation, even if cloaked in a purported joke.

“In viewing the totality of the circumstances surrounding the tweet, this tweet had no other purpose except to threaten the (company’s) employees with unspecified reprisal, as the underlying meaning of ‘salt mine’ so signifies.”

The company argued that the CEO had a First Amendment right to speak on his personal Twitter account, and the Board agreed but noted, in footnote 9, that the First Amendment does “not extend to threats made by employers to workers” in violation of the NLRA.

Source: FDRLST Media, LLC, 370 NLRB No. 49 (11/24/2020).

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Third Circuit rules at least part of an asset-purchase agreement must be disclosed to union if requested

The Third Circuit recently held in Crozer-Chester Medical Center v. NLRB that at least portions of an asset-purchase agreement must be disclosed to a union representing workers in the seller’s workforce upon request. The seller had announced its intent to be acquired through an asset purchase and, in doing so, advised that workers in the union’s bargaining unit would be offered employment by the buyer subject to the terms and conditions of a new collective bargaining agreement that the buyer intended to negotiate with their union. The union requested a complete unredacted copy of the asset-purchase agreement (APA). The seller objected that the request was overly broad. The NLRB ruled against the seller, finding that at least some parts were clearly relevant and that it was, therefore, incumbent on the seller to produce the entire agreement or negotiate with the union an agreement to produce only parts. The NLRB found that provisions involving “’employees,’ terms and conditions of employment, the name of the hospitals, the continuation or expansion of certain service lines, capital investments, standards of care, equipment and property,” because those terms, at least, were “relevant to the availability and location of unit work, the potential for layoffs and hiring, whether the pension plan would be fully funded, and whether non-unit employees were receiving pay or benefits the Union might want to negotiate.”

The company then argued that disclosure of the APA would violate its confidentiality provisions and the nondisclosure obligations it owed the buyer. The Third Circuit rejected this argument as well, holding that a seller cannot immunize itself against disclosure to a union by negotiating confidentiality with the buyer.

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NLRB delays effective date for revised representation procedures

As previously posted on this blog, the NLRB has reversed course on its Obama-era expedited election procedures. Originally scheduled to take effect April 16, 2020, the NLRB announced its final rule will now take effect May 31, 2020.

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NLRB published final rule revising employee representation procedures

The NLRB issued a final rule making “three amendments to its rules and regulations governing the filing and processing of petitions for a Board-conducted representation election and proof of majority support in construction-industry collective-bargaining relationships.” The Board has summarized the amendments to its regulations as follows:

  • Blocking Charge Policy: The amendment replaces the current blocking charge policy with either a vote-and-count or a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be either counted or impounded—depending on the nature of the charges—until the charges are resolved. Regardless of the nature of the charge, the certification of results (including, where appropriate, a certification of representative) shall not issue until there is a final disposition of the charge and its effect, if any, on the election petition.
  • Voluntary Recognition Bar: The amendment returns to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and are given a 45-day open period within which to file an election petition. The amendment applies to a voluntary recognition on or after the effective date of the rule.
  • Section 9(a) Recognition in the Construction Industry: The amendment states that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001). The amendment applies to an employer’s voluntary recognition extended on or after the effective date of the rule, and to any collective-bargaining agreement entered into on or after the effective date of voluntary recognition extended on or after the effective date of the rule.
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NLRB returns to its historical standard for deferring to arbitration both before and after the arbitral award

The NLRB has reversed its 2014 Babcock & Wilcox standard for deciding when the Board will defer to arbitration, both before (“pre-arbitral” deferrals) and after (“post-“) the arbitration itself has occurred. Now the burden is on the party resisting deferral (typically a union) not the party urging deferral (typically an employer), and the question is only whether (simplifying a 4-part test) the arbitration has/will provide a fair and full opportunity to litigate the same facts, not whether the CBA expressly provides for arbitration of ULP’s (charges alleging violations of the NLRA, technically called “unfair labor practices”) or whether the parties actually have litigated (or will) litigate the ULP.

Source:  UPS, Inc., 369 NLRB No. 1 (12/23/19).

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NLRB returns to permitting employers to cease dues check-off collections during negotiations

Reversing its Obama-era decision, the Board has returned to its longstanding precedent of permitting employers to stop withholding dues, even as may have been required by a dues check-off clause in a collective bargaining agreement, once that agreement expires and the parties enter renewal negotiations.

In sum, we find that a dues-checkoff provision properly belongs to the limited category of mandatory bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) of the Act only for the duration of the contractual obligation created by the parties. There is no independent statutory obligation to check off and remit dues after expiration of a collective-bargaining agreement containing a checkoff provision, just as no such statutory obligation exists before parties enter into such an agreement. This holding and rationale apply even in the absence of a union-security provision in the same contract. Because we find that it would not be unjust to follow our normal approach when overruling precedent, we will apply our holding retroactively in this case and in other pending cases. We therefore find that the Respondent had no obligation under the Act to continue dues checkoff after the contract expired.

Source: Valley Hospital Medical Center, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139 (2019).

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NLRB reverses course on its expedited election rules

Effective April 16, 2020, the Board will jettison its 2014 expedited election rules. The expedited election rules were highly controversial and nicknamed, depending on the speaker’s perspective, either “quickie” or “ambush” election rules. The highly accelerated election period was intended to limit (or, depending on the speaker’s perspective, curtail) the ability of employer’s to speak and otherwise lawfully campaign prior to the election.

In its fact sheet on the new election rules, the Board summarized “the most significant changes in the new rule(, as follows):  

  • Pre-Election Hearings:  Pre-election hearings will generally be scheduled 14 business days from notice of the hearing, and regional directors will have greater discretion to postpone hearings. In most cases, pre-election hearings currently must be scheduled 8 calendar days from the notice of hearing.  

  • Notice of Petition for Election:  Employers must post and distribute the Notice of Petition for Election within 5 business days after service of the notice of hearing. Existing rules require posting and distribution within 2 business days. Non-Petitioning Party’s Statement of Position:  Non-petitioning parties (most commonly employers) must file a Statement of Position within 8 business days after service of the notice of hearing, and regional directors will have greater discretion to grant extensions. Under the existing rules, non-petitioning parties’ Statement of Position usually must be filed 1 day before the opening of the pre-election hearing (typically 7 calendar days after service of the notice of hearing).  

  • Petitioning Party’s Statement of Position:  Petitioners (typically unions) must file a Statement of Position responding to the issues raised in any non-petitioning party’s Statement of Position. This responsive Statement of Position is due at noon 3 business days before the hearing. In most cases, the current rules do not provide for pre-hearing statements of position from petitioning parties.  

  • Unit Scope and Voter Eligibility Determinations:  All disputes concerning unit scope and voter eligibility – including issues of supervisory status – will generally be litigated at the pre-election hearing and resolved by the regional director before an election is directed. The parties may, however, agree to permit disputed employees to vote subject to challenge. Under the current rules, disputes concerning individuals’ eligibility to vote or inclusion in an appropriate unit ordinarily need not be litigated or resolved before an election is conducted.

  • Post-Hearing Briefs:  Parties are permitted once again to file post-hearing briefs with the regional director following pre-election hearings. Post-hearing briefs will be permitted for postelection hearings as well. Such briefs are due within 5 business days, and hearing officers may grant an extension of up to 10 business days for good cause. Under existing rules, post-hearing briefs are permitted only upon special permission of the regional director.  

  • Notice of Election:  The regional director’s discretion to issue a Notice of Election subsequent to issuing a direction of election is emphasized. The current rules provide that regional directors “ordinarily will” specify election details in the direction of election.  

  • Scheduling of Election:  Regional directors must continue to schedule the election for the earliest date practicable, but—absent agreement by the parties—normally will not schedule an election before the 20th business day after the date of the direction of election.  

  • Voter Lists:  Employers must furnish the required voter list within 5 business days following the issuance of a direction of election. Under the current rules, employers have 2 business days to provide voter lists. 

  • Election Observers:  Parties are required to select election observers who are current members of the voting unit whenever possible. When no such individual is available, a current nonsupervisory employee should be selected. The current rules provide for election observers but place no restrictions on who may be selected to serve as an observer. 

  • Requests for Review: 

    • Filed within 10 Business Days after Direction of Election:  If the Board either does not rule on a request for review or grants the request before the election, ballots will be impounded and remain unopened pending a decision by the Board. 
    • Filed more than 10 Business Days after Direction of Election:  Parties may still file a request for review of a direction of election more than 10 business days after the direction, but the pendency of such a request for review will not require impoundment of the ballots or postponement of the vote results.
    • Post-Election:  Consistent with the current rules, parties may wait to file a request for review of a direction of election until after the election has been conducted and the ballots counted. 

  • Oppositions to Requests for Review:  Oppositions are explicitly permitted in response to all types of requests for review, and the practice of permitting replies to oppositions and briefs on review only upon special leave of the Board has been codified.

  • Certification of Election:  The regional director will no longer issue certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed. Under the current rules, regional directors are required to issue certifications following elections despite the pendency or possibility of a request for review.    

  • Business Day Calculation:  All time periods applicable to the election rule are calculated based on business days as opposed to calendar days. Under the existing rules, there is a lack of consistency on the calculation of days. The new rules also define how business days are calculated, including clarification that only federal holidays are implicated in time period calculations.”

Source: “NLRB Fact Sheet: Revisions to the Board’s Representation Case Procedures.“ See also the final rule, 84 Fed.Reg. 69524 (12/18/19).

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In another reversal, NLRB holds employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations

The NLRB has ruled that employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations. A typical “gag order” would be an instruction by the company to employees (and other witnesses) not to discuss matters relevant to an on-going investigation.

The decision triggered a heated dissent from one Board member who argued it will allow employers, in #MeToo type matters, to further keep secret wrongful matters, such as the details of sexual harassment.

In issuing its decision the Board held that such “gag orders” will, still, draw individualized case-by-case scrutiny from the Board when they are “not
limited on their face to open investigations.”

In reaching its decision, the Board applied its new more permissive approach to analyzing handbooks and policies.

Source: Apogee Retail, 368 NLRB No. 144 (12/17/19).

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NLRB reverses course and holds employers can control emails

In a reversal of its Purple Communications decision, the NLRB held that employers can maintain sole control over their email and computer systems. Employers need not allow workers much less third parties like unions access to their email systems to, for example, further union organizing, collective bargaining, grievance administration or other non-work purposes.

(E)mployees have no statutory right to use employer equipment, including IT resources,

Employers are reminded this decision leaves in tact the Board’s longstanding exception for “those rare cases where an employer’s email system furnishes the only reasonable means for employees to communicate with one another.” For example, where employees are geographically dispersed and have no means, other than corporate email, to communicate. With regard to that exception, the Board elaborated only to say the following:

Because, in the typical workplace, employees do have adequate avenues of communication that do not infringe on employer property rights in employer-provided equipment, we expect such cases to be rare. We shall not here attempt to define the scope of this exception but shall leave it to be fleshed out on a case-by-case basis.

Source:  Caesar’s Entertainment, Inc., 368 NLRB No. 143 (12/17/19).

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NLRB loosens restrictions on an employer’s ability to modify wages, hours and working conditions during the term of a CBA

Historically the Board has permitted an employer to change wages, hours and working conditions during the term of a CBA if it can prove a “clear and unmistakable waiver” by the union permitting the change. An example of a “clear and unmistakable waiver” would be contract language expressly authorizing a company to modify the cost of health insurance up to a certain maximum during the term of the CBA so long as the same modification was imposed on non-union workers. That would be just one kind of clear and unmistakable waiver.

Now, the Board will apply a “contract coverage” standard. This is the same standard that has been applied by the D.C. Circuit. Under the “contract coverage” standard, the Board won’t look for language as “clear and unmistakable” as previously required, rather it will ask whether the plain language of the contract seems to “cover” an employer’s right to act unilaterally. The Board believes this approach is not only more consistent with the National Labor Relations Act but reinforces the role of an arbitrator — not the Board — as interpreter of the CBA; in other words, if an employer believes it has contract language authorizing it to make a change, it should be for an arbitrator, not the Board, to be the primary decider whether or not the CBA was breached by the change.

Source: M.V. Transportation, Inc., 368 NLRB No. 66 (2019).

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A union that isn’t a union? The New York Times on the growing presence of “solidarity unions”

Interesting lunchtime read today for HR and labor-employment law professionals, in the New York Times. The article discusses the growing presence of non-union unions called “solidarity unions,” especially in the tech industry. These groups are simply informal associations of two or more workers in a workplace.

The article is a good reminder for employers that, if workers don’t feel they have a voice in the workplace, they will find a way to express and protect themselves, whether it means through a formal union or simply acting together to secure their goals.

As the article notes, such workers enjoy legal protections, indeed the National Labor Relations Act protects workers who act to further their wages, hours or working conditions, whether or not they do so through a union. Also protected are worker actions, with no union involved, involving two or more workers actin in concert with each other, or sometimes even, as a previous blog post noted, when a single worker acts on behalf of his colleagues.

The New York Times reports that “solidarity unions” are already present at Google, Kickstarter, Uber and other companies. Their proponents believe they hold several advantages over traditional organized unions: They do not need to be recognized through NLRB-sanctioned elections. They do not need the support of a majority of the workers. They do not need to, and generally do not, enter into collective bargaining type agreements. Rather they prefer not to have such agreements, instead hoping to keep the company “on its toes” by engaging in labor actions if and when the workers choose, for the reasons chosen by the workers.

The article discusses these “solidarity unions” as outgrowths of a single book, Labor Law for the Rank and Filer.

Source: “The Radical Guidebook Embraced by Google Workers and Uber Drivers,” New York Times (10/10/19).

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NLRB reverses micro-unit rule

The NLRB has reversed its 2011 Specialty Healthcare decision, which in turn reversed its 2017 PCC Structurals decision, meaning the NLRB will no longer permit a union to try to organize only a sliver of a workforce (a so-called “micro-unit”). Now an employer (or workers) may defeat a union’s effort to organize a micro-unit by proving the petitioned-for unit does not share an internal community of interest or does not have sufficiently distinct interests from those employees excluded from the petitioned-for unit.

Source:  The Boeing Co., 368 NLRB No. 67 (2019)

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NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to join a boycott is entirely dissimilar from Girl Scout cookie sales, firefighter boot drives, Salvation Army drives, Lion’s Club activities, Red Cross blood drives and church activities. Employers may now comfortably permit such other activities without worry that they could be used by union activists to justify the union’s presence.

The Board’s ruling not only reinstated the exception permitting employers to treat civic, charitable and promotional activities” differently from unions but suggests the Board will now require an even higher showing for unions. The Board held that the new burden of proof will require the union (and NLRB General Counsel) to prove that the employer allowed “comparable organizational activities.” The Board did not give examples of what might be considered “comparable organizational activities.”

Source: Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).

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NLRB implements Supreme Court’s 2018 decision on arbitration agreements

In 2018, the Supreme Court rejected, in a decision titled Epic Systems Corp. v. Lewis, the argument that Section 7 of the National Labor Relations Act’s protections for protected concerted activity somehow encompass a right to file class action and collective action lawsuits. There the Supreme Court held that, accordingly, employers can require pre-dispute arbitration agreements, even if it means such agreements block class and collective actions.

The Board recently was faced with a case on the issue and adopted the Supreme Court’s approach, restating that the NLRA does not bar arbitration agreements, even if they have that effect. In doing so, the NLRB clarified that employers are still prohibited from retaliating against employees who choose to act together by filing a class or collective action. “We reaffirm, however, longstanding precedent establishing that Section 8(a)(1) prohibits employers from disciplining or discharging employees for engaging in concerted legal activity, which includes filing a class or collective action with fellow employees over wages, hours, or other terms and conditions of employment.”

Source:  Cordua Restaurants, Inc., 368 NLRB No. 43 (8/14/19).

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NLRB reverses 38-year old precedent regarding property access rights of union organizers

Reversing its 1981 president, Montgomery Ward, the NL RB recently held that non-employee union representatives can be banned from public spaces within an employer’s property, such as cafeterias, if they engage in organizing activities in those areas. The decision signals an equally pro-employer approach will be adopted with regard to the Board’s 2014 decision, Purple Communications, which held employees can, under some conditions, use company email for organizing.

This new property-access decision is likely to be challenging on at least two fronts.

First, it may be difficult to apply. The majority admitted in this new decision that union representatives could still enter such spaces, so long as they do not engage in union organizing activities. In other words, it may be difficult for an employer to expel union representatives who are simply having lunch with employees in the public cafeteria, so long as they are not visibly engaged in organizing activities by, for example, handing out flyers or buttons.

Second, the decision is likely to be relatively short-lived. It will no doubt be reversed, and Montgomery Ward, reinstated, by the next Board appointed by a Democrat president.

Source: UPMC, case no. 06-CA-102465 (6/14/19).

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Colorado Supreme Court holds referral service to be an employer, striking independent contractor classification

In contrast with the Trump Administration’s approach to so-called gig-economy cases, the Colorado Supreme Court recently struck one company’s attempt to classify its workers as independent contractors, not employees.

At the federal level, the Trump Administration has, through both the NLRB and DOL, recently held that (at least some) gig-economy companies, like Uber in particular, are technology companies that merely connect consumers with service providers (example, drivers), and as such, they may lawfully characterize — at least for federal purposes — those service provides as independent contractors.

In this case, the Colorado Supreme Court rejected a company’s argument that it was merely a referral source connecting consumers with housecleaners. The Court held the company was, therefore, liable for Colorado state unemployment taxes.

Does the case signal a rejection of the Trump Administration’s approach at the Colorado state level? Or is the case distinguishable from situations like Uber’s paradigm? These questions have yet to be litigated. It may simply be that the Colorado Supreme Court will reject, at the state level, at least for unemployment, if not also workers compensation, the Trump Administration’s approach at the federal NLRB and DOL level.

Alternatively, the case may suggest some key factual distinctions about the particular company in this case. In the Colorado Supreme Court case, the evidence — unlike arguably in other gig-economy cases — was that the referral company did quite a bit more than simply refer. The Supreme Court noted testimony that it assisted cleaners, it trained them, it exercised “quality control,” it even controlled the cleaners’ ability to hire assistants. The Supreme Court held that all of this combined to be “exactly the control and direction” sufficient to convert a company into an employer, in other words, independent contractors into employees.

Another distinction may have been the apparent lack of technology underlying the cleaning company’s business model. As the federal agencies have noted in their gig-economy cases, companies like Uber characterize themselves as, first and foremost, technology companies. They have invested in and run considerable technological platforms to effectuate their referral systems. It is those very technologies that created their business models. The federal agencies noted that running those technologies is, therefore, the business of a gig-economy company, like Uber. In other words, Uber’s real business is running that technology, not driving. Thuse the company and its service providers are, those agencies have said, in two different businesses.

One thing is clear, companies in Colorado that use independent contractors should immediately review those classifications with experienced legal counsel. This case reflects a continuingly narrow approach to independent contractor classifications at the state level.

Additionally, it should be noted that the Colorado Supreme Court did not note that this company had written agreements in place. Both Colorado state unemployment laws and workers compensation laws create a rebuttable presumption of independent contractor status if companies have written agreements that meet particular statutory requirements. In addition to reviewing their independent contractor classifications, companies should ensure they consult with legal counsel to develop compliant written independent contractor agreements, so they can at least assert the benefit of such a presumption in these cases.

Source: Colorado Custom Maid v. ICAO, case no. 17SC350 (Colo. 5/28/19).

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Uber and other gig-economy companies score major wins at NLRB and DOL

Both the NLRB and DOL have issued letters advising that gig-economy companies, like Uber, are not employers but have instead properly certain workers, like drivers, as independent contractors.

The letters come on the heels of NLRB decisions earlier this year holding that the Board will no longer look at potential or even contractually-available control. Rather it will focus on actual control exercises by the company, and in doing so will not consider control that is required by the government. This new test focuses on whether the independent contractor enjoys his-her own “entrepreneurial opportunity.”

In the NLRB letter, NLRB General Counsel opined that Uber in particular is, under this new test, not engaging drivers as employees but has properly characterized them as independent contractors. Specifically General Counsel noted that drivers control their own time of work, place of work and are free to drive for competitors, with many actually doing so. Drivers provide their own vehicles, fuel and maintenance. They operate without supervision by Uber, rarely interacting with Uber’s management except when a problem arises.

In the DOL’s letter, the DOL did not identify the gig-economy company at-issue but reaffirmed in general that such companies are, for similar reasons, properly able to characterize workers as independent contractors.

Source: NLRB General Counsel Advice Memorandum case no’s. 13-CA-163062, -158833 and -177483; DOL Wage-Hour opinion letter no. FLSA2019-6 (4/29/19).

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Unions unable to charge lobbying costs to dues protesters, rules NLRB

In another setback to unions, the NLRB held that unions cannot charge lobbying costs to dues protesters.

In the NLRB’s terminology, a dues protestor is called a “Beck objector,” after the Supreme Court’s 1988 decision in Communication Workers v. Beck. There, the Supreme Court held that workers in a unionized workplace have the right to refuse to pay full union dues; instead, a so-called Beck objector can insist on paying only the share of dues that funds negotiating, administering and fighting grievances under his/her own collective bargaining agreement. Unions, therefore, set a fee rate that is lower than full dues, and must provide Beck objectors the calculations that show they are charging only Beck fees.

In this case, the Board held, first, that unions must provide those calculations to Beck objectors in the form a verified audit letter from the union’s auditor.

Next the Board turned to the union’s lobbying expenses. In this case, the union spent money to lobby state legislatures in support of legislative activity that it felt behooved its bargaining unit members, not just at this contract, but for all its members. The Board held that none of the lobbying efforts could be charged to Beck objectors.

Consistent with these cases, we conclude that lobbying expenses are not chargeable to Beck objectors under the NLRA.  We accordingly find that the Union violated its duty of fair representation by charging nonmember objectors for expenses incurred as to any of the lobbying activities at issue.

The case deals a heavy blow to unions, which frequently undertake significant lobbying efforts on behalf of their bargaining unit members.

Source: United Nurses and Allied Professionals, 367 NLRB No. 94 (3/1/19).

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DC Circuit affirms NLRB’s ruling that off-duty employees have protected right to picket near hospital entrance

Historically labor practitioners (and the NLRB and the courts) have analyzed picketing versus handbilling differently. As a general rule, handbilling (i.e., the distribution of literature) has been allowed in many circumstances where picketing (the holding of a picket sign) is not. For example, in hospitals, since the Board’s 1945 Republic Aviation decision, handbilling, like solicitation (verbal requests for support) has been presumptively permitted “outside of immediate patient-care areas, such as in hospital lounges and cafeterias … unless the hospital can demonstrate the need for the restriction ‘to avoid disruption of health-care operations or disturbance of patients.’” 

In this case, the NLRB extended that approach to picketing, and the D.C. Circuit has affirmed its approach. The DC Circuit cautioned that the employer might have been able to block the picketing if it could prove that the “likelihood” that the otherwise protected activities would disturb patients or disrupt patient care. 

It is likely that future courts (and the Board) will limit this ruling to its facts where:

  • Off-duty employees
  • Of a hospital
  • Wish to picket by merely “holding … picket signs—without any chanting, marching, or obstructing of passage”
  • In a manner where they stand “stationary” and do not patrol
  • In a location, which even if near the hospital entrance, does not impede pedestrians, traffic or other operations
  • And do so without the likelihood of disturbing patients or disrupting patient care.

Source: Capital Medical Center v. NLRB, (D.C. 8/10/18).

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NLRB General Counsel eases rules for deferral to arbitration

What if a union files a grievance under the collective bargaining agreement alleging a violation of the CBA, and then also files a charge at the NLRB alleging a violation (unfair labor practice) of the NLRA premised on the same facts? What if the timeline is reversed: The union files its ULP charge at the NLRB first then its CBA grievance? What if the union files only a ULP and for whatever reason declines to file a CBA grievance, maybe because it knows it’s case lacks merit and fears losing an arbitration of the grievance?

Can a company in any of those scenarios ask the Board to defer to the arbitration process in the CBA? The answer had historically been, yes, to all three situations, though with some caveats. This is generally called Spielberg deferral (though technically it is called Collyer deferral or Dubo deferral depending on the timing of the various kinds of scenarios).

In its 2014 Babcock & Wilcox decision, the Board carved out one scenario for special consideration: Where the union/employee has filed a ULP charge alleging a violation of sections 8(a)(3) or 8(a)(1) but have not yet filed a grievance under the CBA. The Board added special requirements for deferral in such cases.

The NLRB General Counsel has, now, opined that he believes Babcock & Wilcox was wrongly decided. He has asked the Board to reconsider when the issue next arises in a case.

In the meantime the NLRB General Counsel has instructed Board personnel to stop applying the Babcock & Wilcox additional requirements at least in cases where a grievance has been filed but the arbitrator has yet to rule (i.e., Dubo cases). Instead of the Babcock & Wilcox factors, the NLRB General Counsel has instructed Board personnel to look at whether the union can pursue its grievance to arbitration not whether it has agreed or even wishes to do so.

Source: NLRB General Counsel memorandum no. 19-03 (12/28/18).

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NLRB limits “Army of One” cases

Taking a cue from the longtime successful ad campaign, labor practitioners refer to a category of NLRB charges as so-called “Army of One” cases. The National Labor Relations Act protected only concerted activity, which generally means two or more people working together, to further their wages, hours and working conditions. In an Army of One case, that principle is extended to cover the protests of a single employee; the Army of One doctrine allows a single person, who doesn’t act in “concert” with anyone else, to assert a violation of the NLRA if he is acting on behalf of his colleauges.

In its 2011 decision WorldMark by Wyndham, the NLRB extended the Army of One doctrine to individual gripes that are asserted in a group setting. Before WorldMark, the Board had looked for actual evidence of “group activities” prior to the protest, such as evidence of an actual discussion between the workers discussing the complaint that the individual ended up lodging. In WorldMark the Board recognized the ability of a single individual to become an Army of One, i.e., to engage in NLRA-protected activities, by making a complaint in a group setting.

Now, the Board has reversed WorldMark. No longer is simply making a complaint in a group setting sufficient. Instead the Board identified five factors to be considered.

The fact that a statement is made at a meeting, in a group setting or with other employees present will not automatically make the statement concerted activity. Rather, to be concerted activity, an individual employee’s statement to a supervisor or manager must either bring a truly group complaint regarding a workplace issue to management’s attention, or the totality of the circumstances must support a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action. … (R)elevant factors that would tend to support drawing such an inference include that (1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely (as in WorldMark) to ask questions about how the decision has been or will be implemented; (4) the speaker protested or complained about the decision’s effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

Applying this approach to the facts of this case, the Board rejected an airport skycap’s claim that he’d engaged in Army of One protected activity when he said (to a customer), in the presence of his colleagues, that “we” had performed a certain task “and we didn’t receive a tip for it.”  Even his use of “we” was held insufficient.

(I)ndividual griping does not qualify as concerted activity solely because it is carried out in the presence of other employees and a supervisor and includes the use of the first-person plural pronoun.

Source: Alstate Maintenance, LLC, 367 NLRB No. 68 (2019).

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Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.

 

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NLRB not done redefining independent contractors

According to Bloomberg BNA, NLRB Chair John Ring has said the Board may follow up on its recent decision with formal rule making that would produce regulations that detail its independent contractor test.

“I think codifying significant parts of our labor code into regulations is one way that we can provide some clarity and predictability,” Ring told a group of attorneys Jan. 28 at a conference in New York. “There’s the ability to take whole swaths of the law and put it into one comprehensive set of regulations.”

The board historically has answered legal questions through individual case decisions. Ring said regulations issued through the notice and public comment process bring some permanence because they’re harder for a new administration to undo. He also said the board can use rules to provide examples of how legal questions should be answered in various scenarios, rather than waiting for cases to reach the board one by one.

Source: www.bloomberglaw.com/exp/eyJjdHh0IjoiRExOVyIsImlkIjoiMDAwMDAxNjgtOTUwMi1kMmI1LWE5ZWItZjc1YWZmZmQwMDAwIiwic2lnIjoicEowQURONEVzenVtZWl6ZUVHUU94Q3o2NlhBPSIsInRpbWUiOiIxNTQ4NzExMjAwIiwidXVpZCI6Im51YnhOZzFiWVRBUGNsSkYyajNLTFE9PUtNbCtPS3dnMkVtc3Y2UGZ1U0Jlc0E9PSIsInYiOiIxIn0=

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Board reverses course on Obama-era independent contractor analysis

Continuing a series of changes charted by the Trump Board, the NLRB has reversed course on the Obama Board’s approach to independent contractor analysis. In a case involving SuperShuttle drivers, the Board has made it easier for companies to use, and for entrepreneurs to become, independent contractors.

Whereas the Obama-era approach looked at whether the company had the ability to control a putative contractor. Now the Board will look to the exercise of actual control and specifically whether the exercise of actual control is sufficient to negate the contractor’s “entrepreneurial opportunity.”

The Board cautioned that a contractor’s “economic dependency on the company does not negate the existence of ‘economic opportunity.'” “(A)ny sole proprietor of a small business that contracts its services to a larger entity” is, the Board explained, economically dependent on that company.

Large corporations such as Fed-Ex or SuperShuttle will always be able to set terms of engagement in such dealings, but this fact does not necessarily make the owners of the contractor business the corporation’s employees.

Additionally the Board cautioned that control, which is required by the government, should not be considered in this analysis.

(R)equirements imposed by governmental regulations do not constitute control by an employer; instead, they constitute control by the governing body.

Instead, the Board will focus its analysis on the 10 common law factors set forth in the Restatement (Second) of Agency, sec. 220, which the Board quoted in length, as follows:

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) The extent of control which, by the agreement, the master may exercise over the details of the work.

(b) Whether or not the one employed is engaged in a distinct occupation or business.

(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.

(d) The skill required in the particular occupation.

(e) Whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work.

(f) The length of time for which the person is employed.

(g) The method of payment, whether by the time or by the job.

(h) Whether or not the work is part of the regular business of the employer.

(i) Whether or not the parties believe they are creating the relation of master and servant.

(j) Whether the principal is or is not in the business.

Additionally the Board will consider whether the putative contractor has “significant entrepreneurial opportunity for gain or loss.” Then, the Board will consider related relevant factors, as follows:

Related to this question, the Board has assessed whether purported contractors have the ability to work for other companies, can hire their own employees, and have a proprietary interest in their work.

Applying this test to the SuperShuttle drivers, the Board held they are properly characterized as independent contractors. The Board noted that franchisee-drivers own their own vans. They control “their daily work schedules and working conditions, and the method of payment, where  franchisees pay a monthly fee and keep all fares they collect.” Additionally, “SuperShuttle has little control over the means and manner of the franchisees’ performance while they are actually driving and that SuperShuttle’s compensation is not related at all to the amounts of fares collected by the franchisees.” Their “Unit Franchise Agreement” states they are independent contractors.

The case will have major impact for companies of all kinds, not just franchisees.

Source: SuperShuttle DFW, Inc., 367 NLRB No. 75 (1/25/19).

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NLRB GC sets goal for 5% reduction in across-the-board casehandling time

NLRB General Counsel Robb announced a goal of reducing Board processing times by 5%. This goal applies to all aspects of the Board’s activities.

I am pleased to announce that the Agency has adopted a Strategic Plan calling for a 5% reduction per year in case processing time. This reduction includes not only case handling in the field, but also applies to the time between issuance of an Administrative Law Judge’s decision and Board Order, and to issuance of a Board Order and closure of the case.

All General Counsel side divisions are subject to this 5% reduction goal, including the Divisions of Advice, Legal Counsel, Enforcement Litigation,1 and Operations-Management in connection with case processing in Regional offices, where a significant number of cases will be affected.

The NLRB GC left it to the Divisions and Regions to determine for themselves how best to reach the 5% goal.

In that regard, I am vesting the Divisions and the Regions with wide discretion to develop systems and processes they believe will enable them to meet the Agency’s strategic goal.

Source: NLRB General Counsel memo no. GC 19-02 (12/7/18).

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NLRB requires unions to state explicitly that they will work not to harm neutral employers when threatening “area standards” picketing

When companies work at the same site or even just near each other, a union — unhappy with one of them — may come to feel that actions at that location — such as that particular employer’s wage or benefit levels — are depressing “area standards.” Unions (like everyone) have a right to protest actions that affect their community, even if for example none of their members work for that employer. That is often the case because that particular employer is often a non-union company that the union is trying to organize.

Before commencing their protest activities, the union may warn not only that employer but all the employers at that location. The Board calls those other employers “neutrals.”

The Board require unions who give such warnings to explicitly state that they will work to minimize the impact on neutrals.

A union’s broadly worded and unqualified notice, sent to a neutral employer, that the union intends to picket a worksite the neutral shares with the primary employer is inherently coercive. Without any details, such a notice is ambiguous about whether the threatened picketing will lawfully target only the primary employer or will unlaw- fully enmesh the neutral employer. The neutral would understandably question why the union is sending a strike notice to an employer with no role in the dispute, and this question would reasonably lead it to at least sus- pect, if not believe, that its business would be targeted by the picketing and that it would be prudent to cease doing business with the primary employer to avoid losses. It would be unrealistic to expect neutral employers, many with little experience in arcane common-situs picketing law, to assume the union would avoid enmeshing them in the picketing. Thus, an unqualified picketing threat communicated to a neutral at a common situs is an am- biguous threat, and such an ambiguous threat enables a union to achieve the proscribed objective of coercing the neutral employer to cease doing business with the prima- ry employer—the very object a union seeks to achieve when it makes a blatantly unlawful threat to picket or unlawfully pickets a neutral. Accordingly, as our dis- senting colleague refuses to acknowledge, it is reasona- ble to conclude that when a union sends to a neutral an unqualified and therefore ambiguous notice of its intent to picket a common situs, it does so with an object to coerce the neutral to cease doing business with the pri- mary employer. A union may still lawfully inform a neutral of its intent to picket as long as it qualifies the notice by clearly indicating that its picketing will comply with legal limitations on such picketing.

Source: Electrical Workers IBEW Local 357, N.L.R.B., Case 28-CC-115255, 12/27/18

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Impact of Supreme Court’s Janus decision continues to expand, even beyond labor law

Bloomberg BNA published an interesting article looking at the expanding reach of the Supreme Court’s Janus decision in 2018, which held that public employers could not, under the First Amendment, be required to pay union dues or even a service fee. Many have predicted that Janus will have a major impact on unions in America. Its application to unionized workforces in the private sector is already being litigated. Bloomberg BNA’s article notes that its impact is expanding even beyond labor law:

  • Legal commentators are debating whether it has heightened the protections afforded commercial speech under the First Amendment. Historically commercial speech has of course enjoyed less protection than political speech.
  • It may have rendered unconstitutional laws in states that require attorney bar membership.
  • It may mean that statutes, like Title VII, which require one party to pay the other’s attorney fees are unconstitutional.
  • It may have rendered the NLRB’s longstanding rules that require, within limitations, that employers sometimes allow workers to wear political or pro-union buttons in the workplace.
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D.C. Circuit confusingly has affirmed the Obama Board’s Joint Employer doctrine

The D.C. Circuit has affirmed the Obama Board’s Joint Employer doctrine, which holds that “indirect” control is sufficient to establish Joint Employer status. The rule has proven to be exceptionally controversial and politically sensitive, so much so that the Trump Board has already announced it will be issuing a formal regulatory rule to address the issue.

While the dissent in the D.C. case would have preferred to remand the case and let the Board issue its own rule, the majority decided to tackle the issue head on, or nearly so, or actually not at all head on. Rather the D.C. Circuit’s decision has left employers, unions and individuals more confused than ever over the current status of the law.

The majority held that, as a general principle, the Obama Board had been within its rights to re-articulate the Joint Employer rule in a way that made “indirect” control sufficient to establish Joint Employer status.

We hold that the right-to-control element of the Board’s joint-employer standard has deep roots in the common law. The common law also permits consideration of those forms of indirect control that play a relevant part in determining the essential terms and conditions of employment. Accordingly, we affirm the Board’s articulation of the joint-employer test as including consideration of both an employer’s reserved right to control and its indirect control over employees’ terms and conditions of employment.

What exactly is “indirect” control? That’s been the issue throughout the evolution of this controversial issue, and unfortunately the D.C. Circuit offered no guidance. It simply chided the Board for not, itself, having offered such “legal scaffolding” and suggested that an appropriate standard will somehow distinguish between control over the “matters governing essential terms and conditions of employment” versus “those types of employer decisions that set the objectives, basic ground rules, and expectations for a third-party contractor.”

Employers, unions and individuals are left now to wait for the NLRB to issue its own rule. When the NLRB develops its own rule, one thing seems clear from the D.C. Circuit’s decision, it cannot simply ignore “indirect” control.

A categorical rule against even considering indirect control—no matter how extensively the would-be employer exercises determinative or heavily influential pressure and control over all of a worker’s working conditions—would allow manipulated form to flout reality.

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NLRB signals willingness to revisit its Settlement Bar doctrine

In a footnote to a recent decision, two current NLRB members signaled a willingness to revisit its Settlement Bar doctrine.

Under its Settlement Bar doctrine, the Board has held that workers may not attempt to “decertify” a union for at least a “reasonable” period of time after their employer has entered into an agreement to bargain. Decertification is the process, at the NLRB, whereby workers can vote a union “out.” The purpose of the Settlement Bar doctrine is to allow the union a “reasonable” time to prove its value to the workers by negotiating a collective bargaining agreement. The Board explained this rule in its 2017 decision, CTS Construction, Inc.:

Under the Board’s settlement bar doctrine, as stated in Poole Foundry & Machine Co., 95 NLRB 34 (1951), enfd. 192 F.2d 740 (4th Cir. 1951), and its progeny, an employer that enters into a settlement agreement requiring it to bargain with a union must bargain for a reasonable period of time before the union’s majority status can be questioned. In deciding whether the parties have bargained for a reasonable period of time, the Board considers the following five factors: whether the parties were bargaining for an initial agreement; the complexity of the issues negotiated and the parties’ bargaining procedures; the total amount of time elapsed since the commencement of bargaining and the number of bargaining sessions; the amount of progress made in negotiations and how near the parties were to agreement; and the presence or absence of a bargaining impasse.

In this recent case, two of the Board members said in a footnote that they were applying the current Settlement Bar doctrine in this case but only for precedential reasons. They cautioned that they would be willing to jettison the Board’s approach in a future case.

Stay tuned to the Board’s decisions to see if it does indeed abandon its current Settlement Bar doctrine.

Source: Krise Transportation, Inc.

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Unions face increased exposure for DFR charges

The NLRB General Counsel issued a memorandum directing the Board’s enforcement personnel to be more aggressive in prosecuting charges against unions under the National Labor Relations Act sec. 8(b)(1)(A), which imposes a Duty of Fair Representation (“DFR”) on unions. Under Sec. 8(b)(1)(A), workers who are represented by a union may file a DFR charge alleging that the union failed to represent them adequately. To prove a DFR violation, the worker must show the failure to represent was arbitrary, discriminatory or in bad faith. Historically, union have been able to assert, as a defense, that their failure was “mere negligence.”

The NLRB General Counsel’s memo keeps in place the “mere negligence” defense but offers a tighter definition for what does and does not constitute “mere negligence.” The memo orders NLRB staff to now follow this tighter definition.

Under the tighter definition, unions face increased exposure for DFR charges. What was once “mere negligence” will no longer be tolerated by the Board.

The memo provides two specific examples:

  1. “(H)aving lost track, misplaced or otherwise forgotten about
    a grievance, whether or not (the union) had committed to pursue it,” will no longer be considered “mere negligence,” unless the union proves it did so in spite of its previously established and routinely used should be required procedural systems to process such concerns (i.e., despite proof of the prior “existence of established, reasonable procedures or systems in place to track grievances”).
  2. “(A) union’s failure to communicate decisions related to a grievance or to
    respond to inquiries for information or documents by the charging party” will generally not be considered “mere negligence.” “Regions issuing a complaint in these cases should argue that a union’s failure to return phone calls or emails or other efforts by the charging party to inquire about a grievance or attempt to file one, constitutes” a DFR violation.

The General Counsel is aware that the above-described approaches may be
inconsistent with the way the Board and Regional Directors have historically interpreted duty of fair representation law. Going forward, Regions are directed to apply the above principles to Section 8(b)(1)(A) duty affair representation cases, issue a complaint where appropriate, and make arguments consistent with those set out above.

Source: NLRB General Counsel Memorandum ICG 18-09 (9/14/18).

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NLRB proposes rule to reverse Obama-era Joint Employer standard

As explained in earlier posts, the Board’s Obama-era decision in Browning Ferris, revising its Joint Employer standard, has proven exceptionally controversial. At the close of 2017, the Board voted, in Hy-Brand, to reverse Browning Ferris, but that decision was rendered unenforceable when Board Member Emanuel was ruled to have had a conflict.

Now, the NLRB has issued proposed regulations that will do what it would have done by decision in Hy-Brand, namely, return the Board to the pre-Browning Ferris Joint Employer standard, which had required proof that a purported joint employer has actually exercised “direct and immediate” control. Under this new rule, if made final, even contract provisions that reserve to a company the possibility of control would not be sufficient to establish a joint employer relationship, nor would limited or routine involvement in operational matters. Rather, to be a joint employer under the proposed rule, a company would have to be proven to have actively involved itself in hiring, firing, discipline, supervision and the direction of workers.

The Joint Employer doctrine has importance for any company that uses independent contractors, which is virtually every company, and has been especially significant to companies whose very business models involve the use of contractors, including franchisors and gig economy companies.

Source: NLRB, “The Standard for Determining Joint Employer Status,” 83 Fed.Reg. 46681 (9/14/18).

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Troubled by NLRB Member Emanuel’s recusal in Hy-Brand?

If, like many, you are troubled by the recent recusal of NLRB Member Emanuel from the Hy-Brand case, you might want to read an article in the latest newsletter by the ABA Labor and Employment Law Section.

What’s Hy-Brand? Hy-Brand Industrial Contractors, 365 NLRB No. 186 (2015), was a decision by the NLRB under President Trump. It overruled Browning-Ferris Industries, 362 NLRB No. 186 (2015), which had been a decision by the NLRB under President Obama. In Browning-Ferris the Obama Board expanded the joint employer standard. The case set off a political firestorm. Thus it was no surprise when the Trump Board, in Hy-Brand, reversed Browning-Ferris, returning the Board to its prior approach to joint employers.

How did Member Emanuel end up being recused, and what did that mean for Hy-Brand? After Hy-Brand was announced, the Board’s own Inspector General called a foul on the play. The Inspector General opined that Member Emanuel should have recused himself from the decision because, it contended, he had a conflict of interest. With his vote subtracted, the Board was left split 2-2, effectively nullifying Hy-Brand and keeping Browning Ferris in place.

What was Member Emanuel’s conflict? This is where the case takes a sharp turn around President Trump’s own policies. Member Emanuel himself had no actual conflict. But for the Trump Administration’s own policies, the Trump Board’s vote in Hy-Brand would have stood. The conflict was imputed to Member Emanuel because he, like many NLRB Members, came from a large law firm. On the union side, it’s common for NLRB Members to come from large unions. It’s not uncommon therefore for Board Members to be called upon to decide cases that involve legal issues their prior law firm/union/company may have argued. In fact, it’s not just not uncommon, it’s expected. Nonetheless, the Inspector General imputed a conflict to Board Member Emanuel because his prior law firm had handled a matter involving the joint employer issue. It should be noted it did not involve the same parties, or the same evidence, simply the same legal issue. Normally that would not be enough to create a conflict, and even now it arguably should not be enough, but in this particular instance, at this particular time, it was, because, the Inspector General pointed out, the Trump Administration has required its appointees to agree to a voluntary ethics pledge (Executive Order 13770) that prohibits them from participating in “any particular matter involving specific parties that is directly and substantially related to (their) former employer or former clients” during the first two years of government service.

Source: “The NLRB Recusal Standard: How Will Hy-Brand, The Inspector General, and a Federal Regulation Affect Employees and Employers?,” G. Enis and S. Hamilton, American Bar Association Labor and Employment Law Section newsletter, vol. 46, no. 4 (Summer 2018).

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Want to read about the NLRB’s recent ruling on micro-units?

Check out my comments and in general this interesting article in Colorado Law Week regarding the NLRB’s recent decision involving Boeing and so-called “micro units.”

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Want to read about the NLRB’s upcoming ruling on emails?

The NLRB is currently considering whether and how to reverse Purple Communications, the decision that presumptively permitted employees access to company email systems for use in unionizing efforts. Read my comments in this great article on Colorado Law Week.

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Union Leader Salaries Soar

Issued just before the Supreme Court’s Janus decision, a survey of union leader salaries is a stunning bookmark to the Court’s blockbuster decision holding that public employees cannot be required to pay “fair share” fees, much less dues, to unions. The survey is based on public filings by the unions. It lists total compensation packages for the 10 highest paid union presidents, ranging from $449,852 to $792,483, which the survey notes is several times higher than the average salary for CEOs, $196,050, as reported by the U.S. B.L.S. Statistics like this are likely to continue to fuel right-to-work legislation and Janus-related litigation across the country.

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Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

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Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision is anticipated to strip organized labor of billions of dollars in revenues, much that had previously, in no small part, been used towards political contributions. The Supreme Court reasoned that requiring workers to pay even “fair share” fees, much less dues, was ultimately requiring them to support the unions’ political activities; workers should be free, as part of the constitution speech rights, to decide whether or not to support the unions’ political activities.

Janus was decided under the First Amendment, which only applies to government action. Private workers do not have First Amendment rights in their workplaces, at least as against their employers.

However, one employer is arguing that Janus should be extended to cover private workers nonetheless because, the employer argues, when the NLRB and courts attempt to enforce union requirements for dues and service fee collection, then the NLRB and courts are themselves the government actors. In other words, while the First Amendment does not limit a private employer’s ability to curtail worker speech, it limits the NLRB and courts’ ability to curtail worker speech. The employer already has a pending appeal before the Ninth Circuit, where it has just asked the Ninth Circuit to consider this new argument based on the Supreme Court’s Janus ruling (Communication Workers of America, AFL-CIO v. NLRB v. Purple Communications, Inc., Case Nos. 17-70948, 17-71062, and 17-71276).

The issue is no doubt going to be heavily litigated, but it appears the employer has the better side of this particular argument. If — as we now know from Janus — the Constitution’s speech rights in the First Amendment protect workers against compelled union contributions, they arguably constrain not only governmental employers, but all other governmental actors, including the NLRB and courts, from stripping employees, even private employees, of those same rights.

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Want to hear my thoughts on recent developments at the Supreme Court?

Great morning today discussing the resignation of Justice Kennedy and other recent developments.

Source: 850 KOA, Colorado’s Morning News.

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Is this the end of unions in America? The Supreme Court’s “fair share” ruling in five questions

The Supreme Court ruled that unions cannot charge government workers a “fair share” representation fee, much less union dues. The decision may well be beginning of the end for America’s unions, at least as the political and social juggernauts that we’ve come to know.

  1. What’s a “fair share” fee? A “fair share” fee is like dues, but is less than dues. It’s just the portion of dues that represents the union’s cost of representing the workers. A “fair share” fee is often also referred to as a representation fee. Under this ruling a union cannot charge government workers either dues or even just a “fair share” fee.
  2. What was the Supreme Court’s reasoning? Because the First Amendment protects a person’s right to choose whether or not to speak in support of various things. The fact that a union might want to use money to support its political agenda for example might be important for the union, it might even be very helpful to the workers, but particular individuals may choose not to support that speech. Therefore the Supreme Court held that a union can’t force government workers to give it money if the worker doesn’t want to support the union’s speech.
  3. Why does this apply only to government workers? This case was decided under the First Amendment, which only applies as to governmental action. The First Amendment does not protect workers at private companies. This doesn’t mean private-company employees have no rights, they just don’t have First Amendment rights. Instead, they always have the right under federal labor law to refuse to pay full “dues” and instead can pay the reduced “fair share” representation fee, and in some states with right-to-work laws, they can even refuse to pay “fair share” fees.
  4. Why is this case so important? Many commentators think this case signals the end of unionism as America has known it for more than a century. Union representation has been steadily declining for decades. Unions represent only 34% of the government workforce and 6% of the private workforce, with many such private-company workers at construction companies that do work for the government. This case — having given government workers the right to refuse to pay even “fair share” fees — is likely to cause a precipitous decline in the revenue streams for unions overall — the Supreme Court noted these fees have aggregated to “billions of dollars” over the years. The decline in revenue streams is in turn likely to result in a greatly reduced ability for unions overall to support political movements.
  5. Can this decision be overruled by Congress? No, only the Supreme Court can decide what the Constitution does and does not permit, so only a future Supreme Court could reverse this decision.

In announcing this highly controversial 5-4 decision, the majority recognized the impact its ruling is likely to have on unions.

We recognize that the loss of payments from nonmem­bers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the consider­ able windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many bil­lions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.

In contrast, the dissent noted that, in order to reach this result, the majority had overruled more than 40 years of precedent.

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Right or wrong, this case is now the Supreme Court’s ruling and likely to have a major impact on unionism in America.

Source: Janus v. AFSCME, case no. 16-1466 (6/27/18).

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Joint Employer rule coming from NLRB?

The NLRB’s approach to the Joint Employer doctrine has proven exceedingly controversial. The NLRB’s approach has sparked similar controversy in both the courts and at the D.O.L. Soon, more fuel will be added to the political fires. The N.L.R.B. announced its intent to publish a proposed joint employer rule. What’s it likely to say? Stay tuned. IT is likely to continue the Board’s rollback against the Obama-era Board’s Joint Employer approach. Some recent developments at the Board suggest some possibilities. The draft rule is expected this summer. At that point, the Board advises it will follow formal administrative rulemaking procedures, which will include a comment period.

Source: NLRB news release (6/5/18), disclosing an otherwise unpublished letter by NLRB Chairman to certain Senators.

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Board steers a sharp 180 in the application of Section 7 to handbooks and policies

During President Obama’s administration, the NLRB substantially expanded its scrutiny of handbooks, workplace rules and workplace policies that, it felt, conflicted with Section 7 of the National Labor Relations Act. Section 7 is the part of the Act that permits both unionized and non-unionized workers to act together in concert to further their wages, hours and working conditions.

On June 6, 2018, NLRB General Counsel Peter B. Robb announced the Board will no longer lean towards finding violations of Section 7 in workplace policies. The General Counsel’s memo implements the Board’s own decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), where it reversed much of the doctrines associated with the Obama-era Board’s Section 7 analysis and the General Counsel’s previous memo in December 2017.

Now the Board is directed to no longer err on the side of finding a violation when it determines language is merely on its face, without evidence of actual anti-union animus, potentially ambiguous.

Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.

NLRB General Counsel advised Board personnel that, now, the following types of policies should be considered presumptively lawful:

  • Civility codes (for example, policies that prohibit language or behavior that is offensive, rude, discourteous, negative, annoying, disparaging, condescending, etc.)
  • Rules that prohibit photography/recording in the workplace
  • Rules that prohibit insubordination or non-cooperation
  • Rules that prohibit disruptive or boisterous conduct
  • Rules that protect confidential, proprietary or customer information
  • Rules that prohibit defamation or misrepresentation
  • Rules that protect company logos and I.P.
  • Rules that prohibit speaking on behalf of the company without authorization
  • Rules that prohibit disloyalty, nepotism or self-enrichment

NLRB General Counsel advised Board personnel that, now, the following types of policies will no longer be considered presumptively unlawful, but rather will now require individualized analysis of the particular circumstances of each case:

  • Rules that prohibit conflicts of interest “that do not specifically target fraud and self-enrichment”
  • Broad confidentiality rules that merely protect “employer business” or “employer information”
  • Anti-disparagement rules that prohibit criticizing the company only
  • Rules that broadly prohibit the use of a company’s name
  • Rules that restrict workers’ ability to speak to media or third-parties on their own behalf
  • Rules that prohibit lawful off-duty conduct that is otherwise protected
  • Rules that broadly prohibit making any kind of “false or inaccurate statements”

Finally, NLRB General Counsel identified the following as rules that remain presumptively unlawful:

  • Rules that prohibit employees from discussing their wages, hours and working conditions
  • Rules that prohibit employees from disclosing their own wages, hours and working conditions to the media
  • Rules that prohibit employees from joining “outside organizations”

NLRB General Counsel also cautioned that the Board’s historical (pre-Obama era) approach to the following types of policies remains unchanged:

  • Solicitation/distribution policies
  • Workplace access policies
  • Uniform policies (to include rules re buttons, tshirts, etc.)

Source: NLRB General Counsel Memorandum GC 18-04 (6/6/18).

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NLRB holds hotel owner REIT liable as a “statutory employer” for otherwise lawful lawsuit against union

Companies that own properties, such as hotels, may find themselves being damaged by the activities of unions who represent or seek to represent workers on the property, even workers who are employed by other companies. Such property owners may have legal rights at-issue and may sue unions and workers for violation of those rights. However, in response, unions and workers can file charges at the NLRB alleging that the real reason for the lawsuit was to retaliate for lawfully protected concerted activities.  That kind of NLRB charge is often called a Bill Johnson charge after the Supreme Court case recognizing the theory behind such a charge. The NLRB will permit a Bill Johnson charge even when it was proven in the underlying lawsuit that the union had violated the property owner’s rights. In a recent decision, the NLRB revisited multiple doctrines involved with that kind of scenario.

As an initial matter, the hotel owner argued before the NLRB that it was not subject to the National Labor Relations Act because it was not the “employer” of the workers, it had no collective bargaining relationship with their union. Indeed it was undisputed that the company, being a REIT (Real Estate Investment Trust), could not have employed the workers. The Board rejected the argument finding that the owner was a “statutory employer,” subject to the NLRA, along with the operator that actually employed the workers. First the Board held the owner had “a significant financial interest in the hotel’s profitability.” More importantly the operator was an affiliate of the hotel owner; it was owned by two of the same individuals who were owners in the REIT/property owner. And, perhaps most importantly to the Board, the REIT/property owner had a management agreement with the operator, in which it required the operator to consult with it over personnel matters, including wages.

Next, the Board rejected the hotel owner’s argument that it had a meritorious basis for its lawsuit against the union. The Board explained that whether the owner’s lawsuit against the union had a “reasonable basis” or not was simply not an issue in the case. The Board said that its “reasonable basis” test did not apply where, as here, the owner’s lawsuit had been directed specifically at activity protected by the NLRA. Here, the REIT/property owner’s lawsuit was, the Board held, entirely focused on the union’s boycott and related activities and speech by the Union and the workers. In so holding, the Board distinguished cases where the underlying lawsuit had targeted unprotected activities, such as defamatory statements made with malice, threats to the public order, or violence. Finally the Board held, that even if the “reasonable basis” test applied, it would not find the underlying lawsuit as having had a reasonable basis.

The decision is a sharp reminder that the NLRB may punish companies who exercise their otherwise lawful right to pursue litigation against a union. The Board’s ruling that a “reasonable basis” for the underlying lawsuit is not a defense arguably has increased the potential for future Bill Johnson charges.

Source: Ashford TRS Nickel, LLC, 366 NLRB No. 6 (2/1/18).

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Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

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NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act.

Section 7 is a part of the National Labor Relations Act that applies to both unionized and non-unionized workforces, so this decision is of equal interest to companies without unions as to companies with unions representing their workforces.

In this case, Google’s employee famously wrote a memo that sought to explain why men received more favorable treatment than women in Google’s high tech workplace. The memo was considered by many to be highly offensive and received substantial national press. Included in his memo were stereotyping comments about women, such that women are more prone to “neuroticism” and therefore less able to work in a stressful environment and that more men score in the “top of the curve” than women.

Although the employee “cloaked” his memo in “science,” especially biology, quoting the NLRB, the Board’s General Counsel refused to engage on the so-called science, instead finding that the stereotyping comments were offensive and specifically offensive in a gender-specific manner, implicating the nation’s laws against sex discrimination. The Board’s General Counsel noted that the memo triggered internal complaints of sexual harassment and multiple female engineering candidates withdrew their applications.

The Board’s General Counsel also refused to condone the parts of the memo that may have been protected under Section 7, which protects an employee’s efforts to further his workplace’s wages, hours and working conditions.

(W)hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

In reaching that conclusion, the Board’s General Counsel noted that Google had drafted the employee’s termination notice to expressly say he was not being let go for any lawful aspects of his memo, but rather specifically and only for “(a)dvancing gender stereotypes.”

Finally the Board rejected the argument that the memo was merely speech and that, as such, it alone may not have been a violation of the anti-discrimination laws.

(E)mployers must be able to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

It is this “nip in the bud” comment that is mostly likely to be cited by future employers. Recognizing that an employer has the right to “nip in the bud” misconduct seems to be a reversal of recent Obama- era Board decisions.

Source: NLRB Advice Memorandum, case no. 32-CA-205351 (1/16/18).

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NLRB likely to rescind Obama-era expedited election rules

In a continuing trend of reversing Obama-era precedents, the Trump Board has signaled it will soon be rescinding the prior administration’s 2014 election rules. Those rules govern the election for (or against) unions to be recognized as a group of workers’ exclusive bargaining agent. The Obama-era rules greatly expedited the timeline for such an election and included a number of substantive changes that many commentators contend infringe on worker rights and employer rights. These controversial rules are known as — depending on the speaker’s perspective — the “expedited” or “ambush” or “quickie” election rules.

The NLRB posted a Request for Information on its website and in the Federal Register, December 14, 2017, inviting comment on three questions involving the rules:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

The deadline for responses is February 12, 2018. Responses may be submitted at that website (limit 250 characters), where they will be posted immediately.

Source: NLRB Request for Information regarding expedited election rules.

 

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NLRB reverses micro-unit rule

Continuing its trend of reversing Obama-era precedents, the NLRB has reversed 2011’s Specialty Healthcare, which had recognized the possibility of a union representing only a portion of a bargaining unit, i.e., a micro-unit. Micro-units were favored by unions when they felt they were able to persuade a majority of the smaller group to vote Yes for union representation, even though the union might not be successful in convincing the entire bargaining unit to so vote. It was seen as a way for the union to gain a foothold in an otherwise unreceptive workforce. In this case, the Board reversed Specialty Healthcare.

Source: PCC Structurals, Inc., 365 NLRB No. 160 (2017).

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NLRB reverses Obama-era joint employer doctrine

Continuing its trend of reversing Obama-era NLRB decisions, the Trump Board has reversed one of the most controversial, the Board’s 2015 decision, Browning-Ferris Industries, in which the Board had held that mere proof of indirect or even potential control was sufficient to create a joint employer relationship. In this decision, Hy-Brand Industry Contracts, Ltd., the Board returns to requiring proof of actual control by the putative joint employer.

The impact of the Board’s decision on the pending legislation regarding the Joint Employer doctrine, previously reported in this blog is yet to be determined.

Source: Hy-Brand Industry Contractors, Ltd., 365 NLRB No. 156 (12/14/17).

UPDATE: On February 26, 2018, the Board vacated the foregoing decision in Hy-Brand due to a purported conflict of interest bearing upon one of its members. On June 5, 2018, the Board announced it will, instead, issue a proposed rule addressing the Joint Employer doctrine. On June 6, 2018, the Board then refused to reinstate the foregoing decision, apparently leaving the issue instead to be determined as part of the forthcoming rulemaking process.

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NLRB General Counsel issues memo outlining likely reversals to Obama-era precedents

As previously reported here in this blog, the Trump Board (NLRB Boards are often colloquially but not pejoratively referred to by the President during their term) has begun overruling Obama-era precedents. Further reversals are anticipated. Curious which Obama-era NLRB precedents are likely to be reversed?

NLRB General Counsel Robb issued a controversial memo, shortlisting the cases he thinks most warrant attention. Indeed to call it a shortlist is a stretch. The General Counsel lists 26 categories, that range from employee access to email, to protections for section 7 rights, obscene and harassing behavior, off-duty access to property, the Weingarten right to have a representative present, rights of employees during contract negotiations, successorship and of course the joint employer doctrine, unilateral changes consistent with past practice, information requests during the processing of a grievance, dues check-offs, remedies, deferral, and, well, the list goes on, as will employers’ need to stay tuned to forthcoming developments at the Board.

Source: NLRB General Counsel Memorandum GC 18-02.

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Republican-majority NLRB begins overruling Obama-era precedents

As reported here, the Trump administration, earlier this year, completed nominations to the NLRB sufficient to constitute a Republican majority of the Board. As predicted, the new Republican-led Board has begun overruling Obama-era precedents.

The first case, UPMC, involves the Board’s procedural requirements for accepting settlement agreements. Historically an administrative law judge (ALJ) at the Board was authorized to accept settlement agreements if “reasonable” under a set of factors articulated in Independent Stave, 287 NLRB 740 (1987).

In 2016, the Obama Board (NLRB Boards are often colloquially and non-pejoratively referred to by the last name of the President at their time) rejected the Reasonableness standard, saying instead an ALJ was authorized to accept settlement agreements only if they provided a “full remedy” for all violations alleged in the complaint. United States Postal Service, 364 NLRB No. 116 (2016).

What’s the difference between the Reasonableness standard and the Full Remedy standard? The facts of this case, UPMC, illustrate. Here, a complaint was filed against UPMC and its affiliate, Presbyterian Shadyside, alleging violations committed by Presbyterian Shadyside. The allegations alleged that UPMC was liable as a joint employer for Presbyterian Shadyside’s violations. Presbyterian Shadyside negotiated a settlement in which it promised to fully remedy any violations; however, the settlement required the Board to dismiss the joint employer allegations against UPMC. Instead of agreeing to be held a joint employer, UPMC promised to guaranty Shadyside’s performance of the settlement.

The ALJ accepted the settlement, but the Board’s General Counsel and the Charging Party objected to how he did so, arguing that UPMC should have been required to admit to being a joint employer, instead of a mere guarantor, in order to provide a “full remedy.” The ALJ held, and in this case, the Board agreed that the settlement with UPMC being a guarantor provided the same effective relief and that it did so more quickly than continuing to litigate the joint employer issue.

UPMC’s remedial guarantee is as effective as a finding of single-employer status.  As noted above, when a parent company is found to be a single employer with its subsidiary, the parent company is liable for the subsidiary’s unfair labor practices to the same extent as the subsidiary. The practical aim of the General Counsel’s single-employer allegation in this matter, then, is to hold UPMC responsible for Presbyterian Shadyside’s unfair labor practices along with Presbyterian Shadyside.

In overruling the Obama Board’s “full remedy” standard, the Board gave a preview of how it will overrule other decisions in the coming months and years, saying the Obama-era case had “imposed an unacceptable constraint” and “was an ill-advised and counterproductive departure from longstanding precedent.”

Furthermore, we overrule Postal Service, and we agree with the dissenting views of Chairman (then-Member) Miscimarra in that case, who pointed out that Postal Service imposed an unacceptable constraint on the Board itself, which retained the right under prior law to review the reasonableness of any respondent’s offered settlement terms that were accepted by the judge. We believe the “full remedy” standard adopted by the Board in Postal Service was an ill-advised and counterproductive departure from longstanding precedent. As illustrated by the instant case, adhering to the Postal Service standard would predictably cause incalculable delay in resolving the alleged violations, while potentially jeopardizing the prospect of obtaining any remedy against UPMC. Today, we return to the Board’s prior practice of analyzing all settlement agreements, including consent settlement agreements, under the “reasonableness” standard set forth in Independent Stave, 287 NLRB 740 (1987)

While UPMC involves a relatively dry procedural issue, it foreshadows a wave of decisions by which the Trump Board will overrule a number Obama Board decisions.

Source: UPMC, 365 NLRB No. 153 (12/11/17).

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Interested in my thoughts on the Gothamist shutdown?

Honored to be featured in Doug Chartier’s article about the recent Gothamist shutdown.

Source: Gothamist Shutdown Raises Questions – Law Week Colorado

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House passes Joint Employer bill

In previous posts, this blog has reported on legislative efforts to limit the NLRB’s joint employer approach. The House has voted to pass its bill, HB 3441, which now proceeds to the Senate, where supporters will need to find at least 8 Democrats to overcome anticipated filibuster.

Source: E:\BILLS\H3441.RH

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NFL Players Association files NLRB charge

As anticipated, the NFL Players Association has filed a unfair labor practice (ULP) charge in the on-going protest-kneeling debate. The charge will now proceed to investigation by the NLRB.

 

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Joint Employer bill moves forward, towards an unclear future

The House Education and the Workforce Committee approved the Save Local Business Act (H.R.3441) moving it forward towards a potential floor vote before the House. As explained in a previous post, the Bill will reverse the NLRB’s 2015 joint employer standard. No sister bill has been introduced in the Senate, and it is unclear whether such a bill could muster sufficient votes to withstand a filibuster in the Senate.

Source: H.R.3441 – 115th Congress (2017-2018): Save Local Business Act | Congress.gov | Library of Congress

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NLRB majority shifts with confirmation of William Emanuel

On September 25, 2017, the Senate confirmed on a 49-47 vote the nomination of William Emmanuel to the National Labor Relations Board, creating a Republican-majority Board for the first time since 2007. The current Board-constituency will be short-lived as Chair Miscimarra has announced he will retire when his term expires December 16, 2017. He recently announced a desire to see the Board, before then, begin reversing multiple Obama-era rulings and initiatives. Expect to see an action-packed two and a half months at the NLRB.

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Interested in the legal ins and outs of the NFL’s kneeling crisis?

Interested in the legal ins and outs of the NFL’s kneeling crisis. Here’s an article: Bloomberg Law – Document – Fired for Kneeling? Not So Fast, Daily Labor Report (BNA)

Bottom line: It depends on the NFL Player Association’s CBA language. If the NFL wants, yes, they could fire a player (or discipline them), but its CBA (collective bargaining agreement) says, according to this article, that the NFL must prove “personal conduct reasonably judged by Club to adversely affect or reflect on Club.” So far, owners and players have supported kneeling, which makes it difficult (to impossible) to prove it is conduct harmful to a club.

What’s interesting about this article is that the reporter not only found the NFL’s CBA, but also the NBA’s, and the NBA’s actually has a national anthem clause: “Players, coaches and trainers are to stand and line up in a dignified posture along the sidelines or on the foul line during the playing of the National Anthem.” Arguably that means the NBA’s CBA doesn’t require as high a showing, and any kneeling would seem to be contrary to its national anthem clause, whether it harms a club or not.

Wondering about baseball? Check out the article’s discussion of the MLB’s CBA.

One thing not discussed in the article, if the NFL were to go to court and ask a judge to issue an order requiring players to stand, then arguably the players’ First Amendment speech rights would be triggered. While the NFL itself is not subject to the First Amendment (the First Amendment only limits what the government can do), it would trigger the First Amendment if it asked a judge to issue an order limiting speech. Until then it’s a matter of collectively bargained rights (and plain business power).

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Congress Takes Shot at Browning-Farris – Law Week Colorado

Interested in reading Bill Berger‘s thoughts about Congress’ efforts to reverse Obama-era expansions of the Joint Employer doctrine, especially H.R. 3441 (which if passed would be the Save Local Business Act)? Check out the August 7, 2017 issue of Law Week Colorado. If passed, the Act would tighten the application of the Joint Employer doctrine (back) to requiring evidence of actual control by the purported joint employer in cases involving the National Labor Relations Act or the Fair Labor Standards Act.

Source: Congress Takes Shot at Browning-Farris – Law Week Colorado

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Pre-Trump NLRB scores post-Trump win at D.C. Circuit

In 2011, the NLRB announced, in Specialty Healthcare, that a union can ask to represent only some of a company’s workers. This so-called “micro-unit” approach has been heavily criticized as permitting unions to cherry-pick a group of pro-union workers within a group of workers who otherwise would vote “No” on having a union. It has been seen as a way for a union to slide its nose into a group that would otherwise want nothing to do with that union. It has further been criticized as a bureaucratic change announced by the Board with no support in the language of the National Labor Relations Act and in direct contradiction of decades of precedent.

Despite that criticism, the D.C. Circuit recently held for the Board, ruling that the Board’s new “micro-unit” approach is within the existing language of the NLRA and was therefore a lawful approach available to the Board. Under this micro-unit approach, an employer can only defeat a union’s attempt — can only require that the vote be held among all the workers in a unit — by showing that the smaller group is “truly inappropriate” and specifically that the workers deserve a vote because they share “an overwhelming community of interest.”

The decision is most likely to face its next hurdle, which is likely to be an insurmountable hurdle, if and when a the next micro-unit case comes before the Board on review. Likely within the next few months, the Trump Administration will have seated its nominees to the Board. If a pre-Trump Board was able to reverse course and adopt micro-units, a post-Trump/Republican-majority Board is able and widely expected to reject micro-units and return Board law to pre-Specialty Healthcare.

Source: Rhino Northwest, LLC v. NLRB

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Trouble for the NLRB’s joint employer doctrine? 

The NLRB famously expanded its joint employer doctrine in its 2015 Browning-Ferris decision. There, the Board effectively eliminated the requirement that a company have actual control to be a joint employer, in other words, it eliminated its decades old “direct and immediate” control requirement. Instead it can be enough now — at least according to the Board — if the company has “reserved” some form of control, that isn’t exercised, even if “indirect.” The Board’s ruling in Browning-Ferris is currently on appeal at the DC Circuit.

Unwilling to wait for a decision, Congress is considering a House Bill, the Save Local Business Act, that would jettison the NLRB’s “reserved” or “indirect” standard and reinstate the “direct and immediate” standard, not only for purposes of the NLRA (the federal labor law governing union relatioins) but also the FLSA (the federal wage-hour law).

Here the DC Circuit considered a slightly different aspect of the NLRB’s new joint employer doctrine (its “share or codetermine” standard). While the DC Circuit went out of its way to say it was expressing no opinion on the Browning-Ferris issue (“direct and immediate”), it held the Board had improperly laxened its “share or codetermine” caselaw, reversed and remanded the case to the Board to reconsider.

Source: NLRB v. CNN Am. Inc.

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Right-to-work legislation coming to you soon?

In a heavily watched and strenuously litigated case, the Seventh Circuit upheld Wisconsin’s right-to-work statute. The decision is likely to embolden efforts designed to bring right-to-work to every state. Currently, almost thirty states have some form of right-to-work legislation in place. Wisconsin‘s, which follows on the heels of Indiana‘s, were two of the strongest. Both prohibited not only any requirement that a worker become a union member, but also that they be required to pay any dues, or even fees. Both were upheld. Federal legislation is pending that would establish right-to-work in every state.

Source: INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 139 v. SCHIMEL, Court of Appeals, 7th Circuit 2017 – Google Scholar

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Individual employee non-competes struck for failure to bargain with the workers’ union

Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain.

In a previous post this blog summarized a Sixth Circuit case, Detroit Edison, that held an employer, who gave notice, was not required to negotiate with a union that merely griped about changes without actually requesting negotiations.

In this case, the company failed to give notice. Instead the company simply started requiring union-represented employees to sign a confidentiality agreement that contained non-competes, invention assignment language, non-interference language, and non-solicits as to both employees and customers. While this type of agreement is not, itself, unusual in the American workplace, unionized employers need to remember that unions are the exclusive bargaining agent of represented workers, so the company must give notice of changes to wages, hours and working conditions, and if negotiations are requested, negotiate over the changes with the union.

Worse, this agreement contained an at-will disclaimer. Again, an at-will disclaimer is common in the American workplace, but here it contradicted the “just cause” discharge clause that the union had bargained for in its collective bargaining agreement with the company.

The D.C. Circuit had no difficulty upholding the NLRB’s decision against the company.

Furthermore, the Court affirmed the Board’s holding that the non-solicits were themselves violative of NLRA rights (under section 7 of the NLRA). (Section 7 rights apply even to employees who are not represented by a union.) Under section 7, employees have the right to engage in protected concerted activity to further their wages, hours and working conditions. Doing so through a union is just one way they may exercise this right. Another is to solicit support from a company’s customers by way of a customer boycott. Here the customer non-solicit prohibited employees from “directly or indirectly” soliciting customers “to terminate or otherwise alter his, her or its relationship with the Company.” This aspect of the Court’s ruling appears highly controversial. It remains to be seen if other courts will interpret section 7 so broadly as to bar a customer non-solicit like this.

The case was Minteq International, Inc. v. NLRB, case no. 16-1276 (D.C. Cir. 4/28/17).

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Union gripes held not a request to bargain

Unionized employers may not implement unilateral changes to wages, hours and working conditions without first providing the union notice and an opportunity to bargain. A union is not required to bargain at that point. Unions often do not; many unilateral changes are everyday and, for unions, often involve no issue warranting negotiation.

In this case, the union, through its president, expressed discontent with a change, condescendingly threatening the company’s labor relations director with “a board charge honey.” He said he would “have to come to (company headquarters) for this one.” While he followed through with his threat to file a board charge, he did not actually request to negotiate, schedule a time to come to, much less go to corporate headquarters.

While a divided NLRB held that his expressions of discontent were sufficient to trigger negotiations, the Sixth Circuit disagreed. “These comments expressed disapproval, to be sure; but that establishes only protest,” the Court held.

The pertinent question is whether, in light of the record as a whole, they clearly signaled a request to bargain. On that point, they were at best ambiguous rather than clear.

The case was Ohio Edison Co. v. NLRB, case no. 15-1783 (6th Cir. 2/10/17).

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NLRB overruled by D.C. Circuit

The D.C. Circuit overruled the NLRB in a case involving a broad range of issues, including Weingarten rights, retaliation, surveillance and coercion.

The court’s analysis began with the Weingarten issue. Weingarten is a case that held a union-represented employee may demand a representative be present at any interview where the employee anticipates discipline may follow. Weingarten allows an employer three options in response to such a demand: (1) grant the request and permit the representative to be present then hold the interview, (2) cease the interview or (3) permit the employee to choose between ceasing the interview or proceeding without a representative. The third option allows an employee to choose to continue the interview if he thinks that what he has to say will be helpful to himself, or to waive the interview entirely and thereby allow the employer to make decisions without the benefit of his information. In this case, when the employee requested a Weingarten representative, the employer attempted to find the representative, even asking HR for help finding the rep. When they could not find the representative, they gave the employee the third option, and he chose not to be interviewed. In this case, the D.C. Circuit held the company met its Weingarten obligations.

At that point, the company put the employee on paid leave pending investigation. The NLRB had held that doing so was retaliatory, but the D.C. Circuit — preserving for employers the important tool of being able to suspend pending investigation — reversed the Board, holding that doing so was not retaliation.

Thereafter, the employee dawdled in a work area before leaving. A supervisor observed him there and instructed him to leave. Here too the D.C. Circuit reversed the Board, holding that it was not an act of prohibited surveillance, but was rather a “routine” observation.

As the employee was told to leave, he was told to stop his discussion with a co-worker – a discussion that centered on the employee’s criticism of management. The D.C. Circuit reversed the Board here as well, holding this was not coercion of protected speech or protected conduct. “As noted above, given the circumstances in this case, it was perfectly reasonable for the Company to instruct (the employee) to leave the workplace pending investigation of his alleged wrongdoing.”

The case illustrates the importance of understanding Weingarten in unionized workforces. The Weingarten issue became the foundation for all of the Court’s analysis. The case also illustrates, in all workplaces, unionized or not, the proper use of suspensions pending investigation.

The case was Bellagio v. NLRB, ____ F.3d ___ (4/25/17).

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Second Circuit OK’s profanity in the workplace

In a controversial case, the Second Circuit affirmed the NLRB’s decision that profanity – profanity any reasonable employer would arguably not permit in its workplace – must be permitted in the workplace. This stunning decision was rendered under Section 7 of the National Labor Relations Act, which is a section of that law that applies to non-union as well as unionized employers. Section 7 permits employees to engage in speech to further their wages, hours and working conditions.

In this case, the speech was designed to solicit support for a union in its organizing campaign. An employee felt his supervisor spoke to him harshly, so, on a break at work, he used his phone to post on Facebook text that included saying that supervisor “is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” (Asterisks added.) What most employers and management-side counsel would find so striking about this language is its combination of purely gratuitous profanity – the graphic cursing adds nothing to the message’s content – but its attack on the supervisor’s mother and “entire” family. Still, when the employee was discharged, and a charge filed at the NLRB, the Board and now the Second Circuit held against the company,

How could both the Second Circuit and the NLRB find this language not only acceptable but legally protected? One unusual fact in the case is perhaps significant and may limit this decision to this particular workplace: The court said that there was “widespread profanity in the workplace, including the words ‘f*ck’ and ‘mother*cker,’ among other expletives and racial slurs.” (Asterisks added.)

Because the profanity occurred in social media, the Second Circuit reiterated the NLRB’s multi-factor test for social media postings:

The “totality of the circumstances” test for evaluating an employee’s use of social media may consider the following factors: (1) any evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense. Pier Sixty, LLC, 2015 WL 1457688, at *3.

The Second Circuit’s conclusion suggests this case is limited to its unique facts, making it the “outer-bounds” (as the Second Circuit, itself, called the decision) of this seemingly already stretched reading of Section 7. The court described its own decisions, as follows:

In sum, Pier Sixty has failed to meet its burden of showing that Perez’s behavior was so egregious as to lose the protection of the NLRA under the Board’s “totality‐of‐the‐circumstances” test.   However, we note that this case seems to us to sit at the outer‐bounds of protected, union‐related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests, as we have previously cautioned.50 We have considered all of Pier Sixty’s objections to enforcement and have found them to be without merit.

The case was NLRB v. Pier Sixty, LLC (2nd Cir. 4/21/17).

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DOL Persuader Rule blocked

The DOL’s persuader rule, which would have extended the longstanding persuader rules to cover attorneys providing legal advice, has been blocked by the courts. Whether it will survive numerous lawsuits, much less a Republican Congress and Trump Administration, is doubtful.

Nat’l Fed’n of Independent Bus. v. Perez , N.D. Tex., No. 16-cv-066, 11/16/16.

 

 

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