Update: Federal Judge Amends Prior Order Concerning 2019 Election Rules, Affording Deference to the NLRB, but Appeal to D.C. Circuit Remains

By Mark Theodore, Joshua Fox and Elizabeth Dailey on July 7, 2020 Posted in Uncategorized

In late May, on the eve of the effective date of the NLRB’s sweeping changes to the election process, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia held that certain of the new rules were substantive—not procedural—in nature, and were improperly implemented without affording the public an opportunity to comment. The portion of the rules relating to procedural aspects of elections (such as timing regarding the election process) were upheld and went into effect, but the remainder did not (e.g., issues a party may litigate before an election, right to NLRB advisory opinion, 20-day waiting period before election may be held, among others). The NLRB immediately announced its intent to appeal the decision.

On the eve of the July 4^th holiday weekend, Judge Jackson granted a motion for reconsideration and amended the order, in part. Although the Court did not overturn its earlier ruling, the Court held that the election rules—as a whole—were not “arbitrary and capricious” under the Administrative Procedure Act (APA), which likely will aid the NLRB’s appeal to the D.C. Circuit. The Court also found the new rule requiring an automatic impoundment of ballots if there is a challenge to the approval of an election that remains pending after voting was not “arbitrary and capricious,” and did not violate the NLRA.

As the Board is in the process of appealing the May 30 Order, we will keep an eye on this case as it continues to develop. For now, the procedural regulations that were implemented on June 1 will remain in effect for the foreseeable future.

Tags: 2019 Election Rule, Arbitrary and Capricious, Judicial Review, NLRB, Representation Elections

NLRB Restores Precedent, Gives Employers Freedom to Unilaterally Discipline Union Employees Between Certification and First Contract

By Peter D. Conrad, Joshua Fox and Dominique Kilmartin on June 25, 2020 Posted in Uncategorized

The National Labor Relations Board continues to overrule Obama-Board precedent at a rapid pace. (See our prior blog posts here, here and here for a few recent examples.)

On June 23, 2020, in 800 River Road Operating Company, LLC d/b/a Care One at New Milford, 369 NLRB No. 109, the Board overturned Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (2016), which had required employers to provide notice and an opportunity to bargain to a newly-certified union on “serious” disciplinary action against unit employees, even before a collective bargaining agreement is in place. In doing so, the Board returned to a rule established 80 years ago that had permitted employers to discipline employees without first notifying or bargaining with a newly-certified union, provided that the action taken was consistent with established policy or practice preexisting the certification.

The ALJ’s Application of Total Security

In 800 River Road, the union was certified by the NLRB as the representative of certain employees at the employer’s facility in 2012. The employer challenged the certification, which was ultimately upheld by the D.C. Circuit in 2017. Prior to the execution of an initial CBA with the union, the employer suspended three employees and discharged another pursuant to its then-existing disciplinary policy, without notice to the union. During contract negotiations months later, the employer informed the union of the discipline. An unfair labor practice charge was filed alleging that the employer had violated its duty to bargain over the discipline of the four employees.

Applying Total Security, an administrative law judge of the NLRB held that the employer’s actions satisfied the definition of “serious discipline,” and that the failure to provide the union with notice and an opportunity to bargain violated the NLRA.

800 River Road Overturns Total Security

In a unanimous opinion, the Board overturned Total Security, holding that the employer was permitted, without bargaining, to discipline the employees pursuant to its existing disciplinary policy. The Board’s rationale for overturning Total Security was three-fold:

First, Total Security conflicted with 80-years of precedent, which had not required employers to notify or bargain with a newly-certified union concerning the exercise of discretionary discipline imposed pursuant to an existing policy.
Second, the Total Security-Board had misinterpreted the Supreme Court’s application of the unilateral-change doctrine enunciated by the Supreme Court in NLRB v. Katz, emphasizing that not every action involving the exercise of employer discretion that results in a change of terms and conditions of employment requires notice to the union and an opportunity to bargain.
Third, Total Security imposed confusing and burdensome obligations at odds with general principles of good faith bargaining, as it did not require the parties to negotiate either to agreement or impasse before permitting the employer to impose discipline, leaving it unclear when action could be lawfully taken. Moreover, requiring employers to bargain in advance over serious discipline interfered with their legitimate business needs by causing undue delay.

The ruling in 800 River Road applies retroactively.

Takeaways

This decision is a clear “win” for employers, as the Board relieved management of an onerous and confusing bargaining obligation. In practice, it had been challenging to say the least for employers to distinguish “serious” discipline from garden–variety action not requiring notice and bargaining.

In addition, Total Security established no bright line as to when the bargaining obligation had been fully discharged, allowing the employer to proceed. This left employers in a quandary.

800 River Road frees employers engaged in first contract bargaining to act swiftly in addressing serious disciplinary issues, without union involvement, provided that the employer follows its existing practice and procedure in doing so.

Tags: certification, discipline, first contract, NLRA, NLRB, serious discipline, Total Security

NLRB Gives Green Light to Confidentiality Provisions in Individual Arbitration Agreements

By Mark Theodore, Joshua Fox and Jacob L. Hirsch on June 23, 2020 Posted in Uncategorized

In many private arbitration agreements entered into in the non-union context, employers and employees agree that the proceedings shall remain confidential. On June 19, 2020, the Board addressed whether a confidentiality provision that arguably restricted an employee participating in the arbitration process from disclosing terms and conditions of employment violates the NLRA.

The Board held, in California Commerce Club, Inc., 369 N.L.R.B. No. 106 (2020), that a narrowly-tailored confidentiality provision in an arbitration agreement prohibiting employees from disclosing evidence obtained during the arbitration or the award/decision itself did not violate the NLRA. Significantly, the Board also held that such agreements should not be evaluated under the Boeing standard, which applies to employer policies and work rules, but instead must be considered under the Federal Arbitration Act (“FAA”) and should be enforced pursuant to the strong body of federal precedent enforcing arbitration agreements.

Factual Background and the ALJ Decision Below

Since early 2015 the employer entered into individual arbitration agreements (the “Arbitration Agreement”) with each of its non-union employees. In particular, the Arbitration Agreement provided that arbitration would be the exclusive dispute resolution process for employment-related claims and that all such “arbitration[s] shall be conducted on a confidential basis and there shall be no disclosure of evidence or award/decision beyond the arbitration proceeding.”

The General Counsel alleged, and the Administrative Law Judge agreed, that this confidentiality provision in the Arbitration Agreement was unlawful because it could be applied to restrict employees in the exercise of their Section 7 right to discuss their terms and conditions of employment. The ALJ likened the confidentiality provision to other workplace confidentiality rules that the Board has found unlawful in other cases.

The Board adopted the ALJ decision and the employer filed a petition for review with the D.C. Circuit. While the petition was pending, however, the Board issued its Boeing Co. decision, which retroactively applied a new standard for all pending work-rule interpretation cases. Based on this intervening precedent, the D.C. Circuit remanded the case back to the Board to consider the legality of the confidentiality provision in light of Boeing.

The Board Reverses its Decision and Declines to Consider Boeing

On remand, the Board reversed its prior decision, holding that the employer did not violate the NLRA by maintaining the confidentiality provision in the Arbitration Agreement. The Board balanced the scope of the disputed confidentiality provision, the parties’ interests implicated by the provision, and the policies of the NLRA. Taking all into account, the Board found that the confidentiality provision was valid because, when reasonably read, it did not prohibit employees from discussing their claims against the employer, the legal issues central to the arbitration, or the events, facts, and circumstances that gave rise to the claim, as long as the employee possessed that information independently from the arbitration proceedings.

However, the Board also acknowledged that the confidentiality provision would restrict employees’ ability to discuss terms and conditions of employment to some extent—for instance, the provision would prohibit an employee from telling coworkers that he or she prevailed in arbitration. While the Board would typically need to balance the impact of a confidentiality work rule on Section 7 rights against the employer’s legitimate interests in preserving the rule under Boeing, the Board here determined that the Arbitration Agreement was not an employer-promulgated work rule subject to the Boeing analysis. Rather, it was part of a larger arbitration agreement whose enforceability is governed by the FAA.

Consistent with Supreme Court precedent interpreting and applying the FAA, the Board held that it was required to enforce the confidentiality provision in the Arbitration Agreement in light of the strong federal policy favoring arbitration, unless there was some congressional mandate to the contrary. In interpreting the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Board held that there is no such congressional mandate in the NLRA that precludes enforcement of the Arbitration Agreement’s confidentiality provision:

“the confidentiality provision at issue here is part and parcel of the rules under which the parties have agreed to conduct arbitration. It would be contrary to Epic Systems and to decades of Supreme Court precedent interpreting the FAA to find a contrary congressional command on these facts. To the contrary, the FAA gives parties the discretion to design their own dispute-resolution procedures, tailored to the type of dispute, including that arbitral proceedings be kept confidential if the parties so choose.”

Takeaways

First, the Board chose not to apply the Boeing balancing test when considering the legality of the Arbitration Agreement, distinguishing arbitration agreements from employer-promulgated work rules. Even though the case was remanded back to the Board in light of Boeing, the Board chose to ignore the Boeing test. The Board’s method of analysis significantly affected its ultimate finding because the Board relied heavily on FAA principles and the strong federal policy in favor of enforcing arbitration agreements, as best exemplified in the Supreme Court’s recent Epic Systems decision. This aspect of the holding is important for any future Board cases involving the legality of arbitration agreements.

Second, the Board’s decision to find the confidentiality provision here lawful was due in large measure to the fact that the clause was narrowly tailored to evidence uncovered during arbitration discovery and the contents of the arbitration award. Broader clauses that seek to proscribe employees from discussing additional terms and conditions of employment—e.g., the underlying facts of the case—may very well be deemed unlawful, even if part of an arbitration agreement. As such, while narrower confidentiality provisions may escape scrutiny by the Board, expanding the breadth of confidential matters to go beyond what is uncovered during arbitration may prove problematic and unlawful under the Act.

Finally, this decision is consistent with the Board’s decisions, including those involving rules governing the confidentiality of workplace investigations, in that it attempts to harmonize the NLRA with the myriad other federal laws governing employment.

Tags: Arbitration, arbitration agreements, Boeing, confidentiality, NLRA, NLRB, Section 8(a)(1), workplace discussions

NLRB GC Issues Guidance Memo Laying Out Changes to Evidence Collection in Unfair Labor Practice Investigations

By Steven Porzio, Joshua Fox and Dominique Kilmartin on June 19, 2020 Posted in Investigations, Investigations, NLRA, NLRB, Section 7

NLRB General Counsel Peter Robb issued a Memorandum on June 17^th setting forth new guidelines for how Regions conduct unfair labor practice investigations—specifically, how Regions secure the testimony of former supervisors and agents, as well as how to handle audio recordings. The stated goal of the Memo is to “promote transparency and apply fairness” during the investigatory process.

Testimony of Former Supervisors and Agents and Fact Witnesses during ULP Investigations

First, Regions are instructed to now allow employers or labor organizations to be physically present during a Board interview of a former supervisor or agent when she/he is providing adverse testimony against a party. The Memo imposes different rules to “actor” witnesses—i.e., supervisors or agents who engaged in behavior alleged to be unlawful in a ULP charge, as opposed to those who are mere fact witnesses, as follows:

Actor Witnesses: If an employer’s agent, such as a supervisor, senior executive or manager, engaged in behavior that is alleged to be unlawful (e.g., retaliating against a subordinate because he or she engaged in protected activity under the NLRA) and the agent is testifying against the employer, the Region must inform the employer before it takes that agent’s testimony, and allow the employer to be present during the testimony. Providing this notice to the employer should be followed regardless of whether the employment/agency relationship between the parties has ended, or whether the relevant “skip counsel” rules—i.e., rules establishing when the Regions may (or may not) directly contact a represented party—permit ex parte
Fact Witnesses: If the witness is merely a fact witness (and is not testifying against the employer), the Region need not notify the employer about the upcoming testimony and otherwise involve the employer in the process.

If there exists a question as to whether an individual is an “actor” witness or a “fact” witness, Regions are instructed to contact the NLRB’s Ethics Office and seek guidance on how to proceed before obtaining the individual’s testimony.

Recordings Received by Regions During ULP Investigations

Second, the Memo provides guidance to Regions for handling audio recordings received during investigations, and sets forth three distinct rules:

Regions are discouraged from accepting recordings that were made in violation of the Federal Wiretap Act (i.e., without the consent of any of the conversation’s participants). Although the Memo does not flatly prohibit the receipt and use of such recordings, Regions are instructed to advise proffering parties of the potential repercussions of offering potentially unlawful recordings.
If a recording is relevant to the ultimate question of whether an employer committed an unfair labor practice, Regions should offer to play the recording for the employer before concluding their investigation; and
In such cases, the Region should inform the proffering party of how the Region may use the recording (i.e., playing the recording for the employer, etc.). The Region should also apprise the proffering party of certain risks associated with the recording (i.e., potential prosecution or civil claim if the recording was obtained contrary to law and/or discipline by his or her employer if the recording was made in contravention of a lawful employer work rule or policy).

Takeaways

The General Counsel Memo certainly promotes transparency among the parties during unfair labor practice investigations: the party offering evidence during an investigation is fully informed of the potential consequences of his or her actions, and the employer is similarly apprised of the evidence offered against it. This practice departs significantly from prior practice, where the Regions would likely not share information regarding the mere existence of a recording, never mind playing the recording for the charged party. It appears the aim of the GC’s Memo is to allow all parties to be fully informed. This may encourage employers who are aware of the existence of an adverse recording to more seriously consider settling the charge as opposed to insisting on litigating only to then find out the existence of an adverse recording.

At the same time, however, the Memo may result in a chilling effect on employees in possession of relevant evidence. For example, an individual employee may be less inclined to provide a relevant audio recording to the Board after being advised that the recording will be played for the employer or that they may face potential prosecution or be terminated if they obtained the recording in violation of the law or employer policy.

Of course, the new protocol laid out in the Memo represents a significant departure from prior practice. The short term and long term impact of this Memo remains to be seen. We will be on the lookout for any additional guidance issued by the NLRB General Counsel, and we will keep you posted on the impact of this Memo.

Tags: investigations, NLRA, NLRB, recordings, Region, testimony, unfair labor practice

NLRB Establishes Bright-Line Test Denying Jurisdiction over Religious Educational Institutions

By Mark Theodore, Joshua Fox and Eric Novak on June 11, 2020 Posted in NLRA, NLRB, Section 7

We have seen this movie before. NLRB precedent established by the Board under the prior Administration conflicted sharply with decisions by the D.C. Circuit reviewing the Board. Then the current iteration of the Board reverses its own precedent and sides with the D.C. Circuit. This situation occurred recently with regard to whether the “clear and unmistakable waiver” standard or “contract coverage” test should apply to unilateral change cases.

We actually foreshadowed this very scenario in context of the Board’s jurisdiction over religious educational institutions in early January, when the D.C. Circuit vacated a NLRB decision that applied the more-expansive Pacific Lutheran University standard compared to the D.C. Circuit’s University of Great Falls three-pronged test.

On June 10, 2020, the NLRB predictably overruled Pacific Lutheran University, 361 NLRB 1404 (2014) and adopted University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002), holding that it has no jurisdiction over faculty at bona fide religious educational institutions, regardless of what specific duties the petitioned-for faculty members at issue perform vis-à-vis the religious or secular functions of the school. Bethany College, 369 NLRB No. 98 (2020).

Background: From Catholic Bishop to Pacific Lutheran to Great Falls

The Board has declined to exercise jurisdiction over religious schools based on the First Amendment’s restriction on government interference with religious practices and the guarantee that religious organizations maintain independence. The distinction the Board has drawn is that where a school is “completely religious,” the Board may not exercise jurisdiction, and where a school is merely “religiously associated,” then the Board may act.

The question created by these standards is which should apply to determine whether the school is “completely religious.” This issue most often arises when a union petitions to represent a unit of faculty at an ostensibly religious institution.

In NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979), the Supreme Court reversed the Board and rejected the Board’s attempt to exercise jurisdiction over a religious institution, emphasizing the “significant risk” that the First Amendment would be infringed. The Board could not exercise jurisdiction “in the absence of a clear expression of Congress’ intent to bring teachers at church-operated schools within the jurisdiction of the Board,” which led to an analysis of whether the school had “substantial religious character” and if so, the institution would fall beyond the reach of the Board.

Subsequently, the Board decided a slew of cases based on the question of whether the institution at issue had a “substantial religious character,” which lead to maddeningly inconsistent Circuit Court decisions on review. In 2002, the D.C. Circuit in Great Falls established a bright-line test where if the following three elements were satisfied, then the Board must decline to exercise jurisdiction: the institution (a) “holds itself out to students, faculty, and community as providing a religious educational environment”; (b) is “organized as a nonprofit”; and (c) is “affiliated with, or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

Twelve years later, in Pacific Lutheran, the Board departed from Great Falls by adding an additional element that focused on the specific role of the petitioned-for faculty members. According to Pacific Lutheran, the Board could only decline to exercise jurisdiction if the Great Falls factors were met and the faculty members themselves were “held out” as performing a specific role in creating or maintaining the college or university’s religious educational environment. The Board thus added a significant gloss on the Great Falls test that focused on the role of the faculty – in addition to the institution – which could create an outcome where some faculty at the institution may fall within the Board’s grasp, and others could not.

NLRB Overturns Pacific Lutheran and Reaffirms Great Falls

In Bethany College, the Board found that the Great Falls test – not Pacific Lutheran – was more faithful to the Supreme Court’s principles, as set forth in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).

The Board concluded that the additional “holding out” inquiry in Pacific Lutheran was flawed because it required the Board to subjectively judge what constitutes a “specific religious function,” inevitably entangling the Board in an analysis of the religious tenets of the institution, and thus resulting in an intrusion into rights protected by the Religion Clauses of the First Amendment.

The Board concluded that applying the Great Falls test “will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves . . . .”

Application to Bethany College

In overruling Pacific Lutheran, the Board reversed the judge’s findings that jurisdiction could be exercised over Bethany College and dismissed the complaint because the College (a) held it itself out as a religious institution to the public based on, inter alia, language in the school’s handbook and job postings, which alerted faculty to the religious nature of the school; (b) is established as a 501(c)(3) nonprofit institution; and (c) is owned and operated by the Central States Synod and the Arkansas/Oklahoma Synod of the ELCA. As a result, the Board could not exercise jurisdiction over the College

Takeaways

Religious educational institutions can now (at least for the immediate future – predicting what will happen tomorrow at the NLRB is risky business) comfortably rely on application of the Great Falls test to determine whether the Board could exercise jurisdiction under the National Labor Relations Act over its employees. The benefit of this test is that institutions may now have greater assurance that the Board will either have jurisdiction over the entire school or not. No longer will educational institutions have to conduct an exacting inquiry by parsing whether and the extent to which certain faculty perform “secular” or “religious” duties.

This decision demonstrates, once more, the Board’s recent predilection of adopting D.C. Circuit precedent that had conflicted with Board precedent established by the Board under the prior administration. Harmonizing Board and D.C. Circuit precedent is helpful for practitioners and parties alike because it avoids spending many years and dollars litigating a matter through a Board decision, when the decision likely would be overturned by the D.C. Circuit. As the election this Fall brings uncertainty to the future composition of the Board, we can expect more decisions overturning prior precedent during the next few months.

Stay tuned!

Tags: educational institution, jurisdiction, NLRA, NLRB, Pacific Lutheran, religious institutions, Representation Elections, Section 7

Union’s Efforts to Scare Employees From Participating in Employer Investigations Rebuked by the Board

By Mark Theodore, Joshua Fox and Austin McLeod on June 9, 2020 Posted in 8(b)(2), Investigations, NLRA, NLRB, Section 8(b)(1)(A)

On June 5, 2020, the NLRB held, in Teamsters Local Union No. 735-S (Bemis Co., Inc.), 369 NLRB No. 97, that union officials’ retaliatory actions against members who participated in an investigation resulting in the discharge of the union president violated the NLRA’s prohibitions against union restraint or coercion (Section 8(b)(1)(A)) and causing employer discrimination (Section 8(b)(2)).

Factual Background and ALJ Decision

The employer manufactures bread bags and its production, maintenance and warehouse employees are represented by a union. In mid-December 2017, an employee reported to the employer that a fellow employee, who also happened to be the union president, had verbally harassed a third employee for more than a year. Bemis suspended the union president and conducted an internal investigation, interviewing employees, including two union members, one of whom was the allegedly-harassed employee. The employer concluded there was merit to the allegations and discharged the union president the following month.

Starting shortly after the investigation was launched, union officials engaged in efforts aimed at maintaining a code of silence among its members. First, the secretary-treasurer approached the allegedly-harassed employee in the breakroom and yelled at him, promising to conduct her own investigation. The secretary-treasurer then posted a memo stating in part:

“We as [ ] Union Brothers and Sisters do not turn each other in if we have an issue[] we go to a steward or a board member. Turning in fellow Union members is a violation of the Union by laws and could result in fines and [sic] black listed from all union jobs.”

Next, when one of the other participants in the employer investigation mentioned to the union vice president that he had been receiving notes and items that resembled rats, the vice president responded by threatening the employee with reprisals.

Finally, the secretary-treasurer lodged multiple safety-violation complaints with the employer against the allegedly-harassed employee for not wearing ear protection on one occasion, and for failing to wear proper protective gear when cutting pizza with his work knife on another occasion.

The ALJ found the union’s posting of the memo and the statements made by the union vice president violated Section 8(b)(1)(A) of the NLRA, but dismissed the claims against the union for the secretary-treasurer’s actions in yelling at the allegedly-harassed employee in the breakroom and attempting to have the employer discipline the allegedly-harassed employee for the two safety violations.

All of the Cited Actions Violated the NLRA, According to the Board

The Board affirmed the violations found by the ALJ, but the Board reversed the ALJ’s dismissal of the complaint allegations against the union secretary-treasurer. Section 8(b)(1)(A) of the NLRA makes it unlawful for a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act.” Section 8(b)(2) makes it unlawful “to cause or attempt to cause an employer to discriminate against an employee.” The Board considered whether the union secretary-treasurer’s actions against the allegedly-harassed employee violated either provision of the Act. As an initial matter, the Board found that the allegedly-harassed employee’s participation in the employer investigation of the union president was protected activity.

The Union Official’s Threats and Harassment Violated Section 8(b)(1)(A) of the Act

As to the allegation that the union secretary-treasurer yelled at and threatened the allegedly-harassed employee in the breakroom, the Board reversed the ALJ and found a Section 8(b)(1)(A) violation. The test for finding an unlawful threat in violation of 8(b)(1)(A) is “whether the remark can reasonably be interpreted by the employee as a threat.”

Here, the Board found that the accusatory language, the close proximity the union official got to allegedly-harassed employee, the official’s gestures, and the official’s promise to “get to the bottom of it,” warranting a finding that such actions could reasonably be interpreted as a personalized threat to hold the allegedly-harassed employee accountable for his role in the union president’s discipline. The Board added that while the union had the right to investigate any disciplinary proceedings against an employee, the secretary-treasurer’s actions crossed the line and could not be framed as a general expression of the intent to investigate.

The Union Official’s Attempts to Cause the Employer to Impose Discipline Violated Section 8(b)(2) of the Act

The Board then addressed the secretary-treasurer’s attempts to have the employer discipline the allegedly-harassed employee. A union violates Section 8(b)(2) of the Act if it has “caused or attempted to cause discrimination if there is sufficient evidence to support a reasonable inference of a union request or a union-employer understanding.” An implied request that an employee be disciplined will suffice.

Here, the Board found the secretary-treasurer’s course of conduct was done with a singular goal: “having the Employer take formal disciplinary action against [the allegedly-harassed employee].” Having made this threshold conclusion, the Board then considered whether the union’s actions were unlawful by applying the burden-shifting framework of Wright Line, which requires a showing that 1) the employee engaged in protected activity, 2) the union had knowledge of the activity, and 3) the union bore animus towards the employee, for an 8(b)(2) violation. The Board concluded that all three requirements were present here, and then shifted the burden to the union to show it would have taken the same action absent the protected activity. The union failed to satisfy its burden, with animus highlighted by the secretary-treasurer’s threats against the allegedly-harassed employee, the multiple “safety” complaints lodged against the employee for minor infractions, and the “blacklist” memo.

Finally, the Board analyzed the conduct under the duty-of-fair-representation framework. There, a union may rebut the presumption that it acted unlawfully after causing or attempting to cause an employee to be disciplined by demonstrating that its action “was necessary to the effective performance of its function of representing its constituency.” Even under this framework, the Board reached the same conclusion that the union failed to rebut the presumption of unlawful conduct stemming from the sought discipline.

Takeaways

This is an interesting case especially in current times where, more than ever, employees are encouraged to report policy violations even if they involve fellow employees. Many labor practitioners have stories where a union-represented workforce is encouraged not to report on or to participate in investigations against fellow bargaining unit members. This can be significant especially in cases of safety violations or harassment.

Here, the Board applied existing law to show that a union may not attempt to silence its members who engage in protected activity by making complaints to their employer through disciplinary threats or other acts of reprisal. Not surprisingly, the Board frowns on a union’s use of threats of fines and other discipline, such as blacklisting, to prevent an employee from making a complaint to an employer, just as the Board would find that an employer violated the Act for engaging in the same conduct that infringes on an employee’s exercise of Section 7 activity. Similarly, a union may not use an employer’s policies as a “cat’s paw” to seek to discipline a bargaining unit member in retaliation for that employee’s participation in an investigation.

Tags: bargaining unit member, by laws, discipline, fines, harassment, internal union rules, NLRA, NLRB, retaliation, section 8(b)(1)(A), Section 8(b)(2)

NLRB Redefines “Solicitation,” Broadening Conduct that may be Considered Unprotected

By Mark Theodore and Eric Novak on June 3, 2020 Posted in NLRB

On May 29, 2020, the NLRB issued an important opinion overruling two decisions in order to define the term “solicitation” in a manner consistent with prior Board decisions and the dictionary definition of the term. Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020).

In defining “solicitation,” the Board held that “where an employee makes statements to a coworker during working time that are intended and understood as an effort to persuade the employee to vote a particular way in a union election, that employee has engaged in solicitation” and may be disciplined pursuant to an employer’s “validly enacted and applied no-solicitation policy.”

In Wynn Las Vegas, the hotel and casino employer maintained a solicitation policy, which provides that all employee solicitation is “prohibited in work areas during the work time” of the initiating or solicited employee.

After finishing her shift, a table games dealer approached an on-duty security officer stationed at the employer’s highest customer traffic area and proceeded to speak to the officer in a one-sided conversation about the upcoming union election. During this three minute exchange, guests and employees walked by, including one guest who approached a different security officer for assistance because that officer was not talking to anyone.

Another security officer overheard the conversation and reported the incident. After further investigation and interviews, the employer issued the table games dealer a first written warning for violating the employer’s solicitation policy. The Administrative Law Judge found that the interaction “constituted union solicitation” and that the hotel and casino lawfully issued the dealer a written warning for violating its solicitation policy.

The Board, in affirming the judge’s decision, reconsidered the narrow definition of “solicitation” set forth in prior decisions, including Wal-Mart Stores, 340 NLRB 637 (2003), enf. denied in relevant part 400 F.3d 1093 (8th Cir. 2005), and ConAgra Foods, Inc., 361 NLRB 944 (2014), enf. denied in relevant part 813 F.3d 1079 (8th Cir. 2016). The Board previously held that solicitation in the context of a union campaign “usually means asking someone to join the union by signing his name to an authorization card.” The Board in Wal-Mart and ConAgra took this concept a step further, requiring an authorization card to be present in order for the conduct to constitute solicitation.

By overruling the two decisions on this narrow aspect, the Board broadened “solicitation” only so far as to bring the meaning of the term in line with prior Board decisions and the dictionary definition of the term. Subsequently, the Board held that union solicitation also encompasses “the act of encouraging an employee to vote a particular way in a union election.”

Additionally, the Board overruled Wal-Mart and ConAgra to the extent that they permitted union solicitation “when there is a significant interruption of work,” such as “a momentary interruption in work, or even a risk of interruption.” The Board emphasized that “working time is for work,” not to be consumed by disruptions such as union solicitation, which interferes with the employers’ right “to maintain discipline in their establishments.”

In applying these principles and overruling the approaches of Wal-Mart and ConAgra, the Board affirmed the judge’s decision that the table games dealer conducted union solicitation in violation of the hotel and casino’s lawful solicitation policy.

Takeaways

This decision illustrates another pullback of decisions from a prior Board. Almost every employer that maintains written policies has a non-solicitation policy that prohibits solicitation during work time of the person doing the soliciting or the person being solicited. This decision returns to the commonsense definition of solicitation. Whether this decision will have broad impact is another thing. Employees often talk about all manner of things during the course of a workday and allowing “solicitation” of any kind (e.g., the office betting pool, purchase of Girl Scout Cookies, etc.) during work time would mean solicitation for or against a union would have to be permitted.

Tags: handbook, NLRA, NLRB, non-solicitation, solicitation, work time, written policies

Update: Despite Order Striking Down Portions of NLRB Rulemaking on Representation Election Procedures, NLRB Implements Rules Unaffected by Order

By Steven Porzio, Joshua Fox, Heylee Bernstein and Austin McLeod on June 2, 2020 Posted in NLRB Election Rules, Representation Elections

On Sunday, we reported on an eleventh-hour district court order striking down large portions of the NLRB’s new representation election rules that were set to go into effect on May 31, 2020. The district court order held certain portions of the rule were unlawful because they failed to follow proper notice-and-comment rulemaking as required for substantive rules. The order remanded the entire set of rules to the NLRB to reconsider in light of the order.

Yesterday, the NLRB announced that effective immediately, it would implement all rules that were unaffected by the order. According to the NLRB’s press release, the following rule changes are now in effect:

Scheduling hearings at least 14 days from issuing a notice of hearing,
Posting the notice of election within 5 days,
Timeline changes for serving the non-petitioning party’s statement of position,
Requiring petitioners to serve a responsive statement of position,
Eliminating requirement that post-hearing briefs be permitted only upon permission being granted,
Reinstating Regional Directors’ discretion on the timing of a notice of election after the direction of an election,
Ballot impounding procedure changes when a request for review is pending,
Prohibiting bifurcated requests for review,
Pleading and other document formatting changes,
Terminology changes, and
Defining “days” as “business days.”

The Board noted it planned on appealing the district court order. We will continue to monitor for appeals and other updates.

On June 1, the NLRB’s General Counsel issued GC Memo 20-07, which provides a detailed analysis of those amendments to representation case processes that were not struck down by the district court and have since been implemented by the Board. This memo should provide helpful insight for companies receiving petitions filed on or after June 1, 2020.

As we reported here, NLRB Regions are holding information sessions to discuss representation case changes. Information sessions are still scheduled for the coming days, and will likely discuss implementing the effective rules. Information on these sessions can be found on the “Latest News” section on NLRB.gov.

Tags: Election Rules, final rules, NLRB, Representation Election, Rules

Breaking: Federal Court Strikes Down New NLRB Rules on Representation Election Procedures; Implementation Delayed and Status of the Rules Uncertain

By Michael Lebowich, Joshua Fox and Heylee Bernstein on May 31, 2020 Posted in NLRB Election Rules, Representation Elections

After an initial COVID-19 related delay, the sweeping new NLRB representation election rules that reversed the Obama-era “quickie” election process were about to go into effect on May 31, 2020. However, an eleventh-hour district court order struck down a significant portion of the rule as unlawfully implemented for failing to follow proper administrative procedure, casting doubt on when, if at all, the new rules will apply. Details of the planned changes are outlined in our reporting on the NLRB’s initial announcement of proposed amendments, as well as updated rules regarding election rules and procedures here and here.

On May 30, 2020, in a much-anticipated decision in a case brought by the AFL-CIO against the NLRB, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia found that the challenged-portion of the NLRB rules were substantive (not procedural) in nature and were, therefore, improperly implemented without providing the public a notice-and-comment period to provide feedback before implementation as required under the Administrative Procedure Act.

The AFL-CIO challenged (and the court overturned) the following aspects of the rules:

Additions to the issues a petitioning party must litigate before obtaining an election,
Providing parties the right to an NLRB advisory opinion on the status of particular individuals under the NLRA,
Increasing the length of the campaign period,
Modifying petitioners’ rights to voter lists,
Limiting parties’ rights to select certain election observers, and
Delaying employees’ rights to bargaining collectively in certain cases even after a majority vote, by preventing regional directors from counting ballots and certifying results.

The Court did not vacate the remainder of the rules that were set to go into effect, which included extensions of time with regard to the election process and other procedural aspects of pre-election hearings, but remanded the entire set of rules to the NLRB for reconsideration in light of the Court’s finding.

The order will not become a final order until the Court has issued its full Memorandum Opinion, which it stated it would do soon. The order is then subject to appeal. We previously noted that NLRB Regions considered this lawsuit when advising on the rules, and we will continue to monitor the Court’s full Opinion and any appeal by the NLRB.

For now, employers should be aware that the Court effectively prevented any portion of the rule from taking effect this week. Until the NLRB reconsiders the rules in light of the notice-and-comment requirements, or the Court rules otherwise in response to an appeal, the 2014 rules regarding representation election procedures remain in effect.

Tags: Election Rules, Final Rule, NLRB, Representation Elections, Rules

NLRB: Policy Prohibiting Personal Cell Phones in Work Areas Due to Safety Concerns May Be Lawful under Boeing

By Mark Theodore, Joshua Fox and Elizabeth Dailey on May 30, 2020 Posted in Employer policies, Handbook, NLRA, NLRB, Protected activity, Section 7, Section 8(a)(1), Uncategorized

As we previously suggested, the NLRB’s adoption of the Boeing standard for determining the lawfulness of employer’s workplace rules, policies and handbook provisions has provided significant fodder for interesting cases.

The Board has struggled for years with the concept that certain commonsense employer business policies can be unlawful. It is difficult to draw bright-line rules from such decisions due to the varied workplaces – even more so now during the COVID-19 pandemic, where workplaces are transforming and new safety guidelines are issued. What may present a legitimate workplace safety concern in one setting, may be deemed pretext in another.

Just a few months ago, the Board found that an employer’s policy restricting cell phone use while driving was lawful under Boeing due to the substantial safety concerns underlying the policy for commercial drivers. Now, in a case involving a beverage manufacturer, the Board addressed a company-policy restricting employees from using their personal cell phones, and other personal items, on the processing floor and at their work stations, and a facility-specific policy that prohibited personal items (including cell phones) in work areas. The Board concluded that these policies were Category 1(b) restrictions under Boeing – meaning there may be a slight impact on the exercise of employees’ Section 7 rights – but that in this situation, the impact was outweighed by the legitimate business justifications for the rules. Cott Beverages Inc., 369 NLRB No. 82 (May 20, 2020).

Background

In Cott Beverages, the employer adopted a policy restricting the use of personal cell phones in prohibited work areas for rank-and-file employees (not management and other employees in leadership positions). The facility-specific policy also prohibited personal items, such as cell phones, clothing, MP3 players, magazines, and other items, from all production and warehouse areas.

Upon remand to the ALJ in light of Boeing, the ALJ found that the employer’s cell phone policy violated Section 8(a)(1) of the Act because the policy restricted employees from using their cell phones for NLRA protected conduct, and the policy could have been drafted more narrowly to promote workplace safety.

Analysis – The Board Reversed the ALJ and Found the Personal Cell Phone Use Restrictions Lawful

Applying the Boeing test, the Board first evaluated the nature and extent of the potential interference the policies could have on employees’ exercise of Section 7 rights. The Board concluded that both the company-wide and the facility-specific policies could have a potential adverse impact on rights guaranteed by the Act, such as restricting employees’ ability to use their cell phones to make audio and video recordings, to communicate with coworkers about terms and conditions of employment, and to take photos of their working conditions.

However, the Board reasoned that the risk of the policies impeding Section 7 rights was relatively slight because the policies prohibited cell phones in working areas only and did not limit employees’ ability to use their cell phones on their own time away from working areas.

Next, the Board evaluated the employer’s asserted business justifications for its cell phone rule. The employer contended that its cell phone policy was necessary to prevent contamination of its beverage production processes and to ensure the safety of its employees. Pursuant to FDA requirements, the policy was established to minimize and eliminate some of the hazards inherent in food production. Additionally, the employer claimed that the restriction on cell phones was necessary in warehouse areas because employees in the warehouse drive forklifts with heavy loads in high-traffic areas.

The Board found the employer’s broad prohibition of personal items, including cell phones, from work areas to be a reasonable and lawful effort to ensure the integrity of its production processes and to comply with FDA requirements for food-production facilities. The Board also agreed with the employer’s contention that, “because of the unique distractions cell phones pose, a blanket prohibition on usage in work areas is a reasonable restriction in order to reduce the risks of product contamination, slowed response times, and on-the-job accidents.”

The Board rejected the ALJ’s finding that the employer’s cell phone policy was unlawful because it could have been more narrowly drafted on the grounds that such a requirement is not grounded in the precedent. After determining that the cell phone policy has some, although slight, impact on employees’ Section 7 rights, “the pertinent question becomes whether the impact (or overbreadth) is outweighed by the [employer’s] business justifications for the rule, not whether the [employer] could have drafted a narrower rule.” (Emphasis added.)

Considering the employer’s justifications, the Board held that the employer’s legitimate interests in promoting workplace safety and the integrity of its food-production processes outweighed the slight risk that the employer’s cell phone policy might interfere with protected employee conduct. Because there exists a slight risk of interference with Section 7 rights, the Board classified the employer’s cell phone rule as a Boeing Category 1(b).

Takeaways

This decision confirms that facially neutral rules designed and tailored to promote workplace safety likely will be upheld as lawful under the Boeing standard— even where there is a possibility that the rule will interfere with employees’ Section 7 rights. In Argos and Cott Beverages, the Board upheld similar cell phone bans in two different workplace scenarios where safety was a legitimate justification for the policy. Given the increased workplace safety regulations imposed throughout the country in light of COVID-19, the Board’s recent guidance should be comforting to employers that the Board may be inclined to find facially-neutral workplace safety rules that may restrict employees’ use of personal items in the workplace lawful under Boeing – particularly given the undisputed safety concerns during the pandemic – even if there is an impact on Section 7 rights.

It is also noteworthy that the policies were limited to cell phone use in work areas where the safety concern was most relevant and did not restrict cell phone use outside of working areas. While employers can feel more confident in their ability to limit or prohibit cell phone use in designated work areas as a safety precaution, employers can better position themselves by crafting policies in a way that limit the potential interference with Section 7 rights where feasible. As always, the asserted legality of a written policy is always bolstered by the ability of the employer to articulate a business justification, such as compliance with federal food safety guidelines.

Additionally, despite both rules being upheld as lawful, the rules in Argos and in Cott Beverages were classified differently by the Board, in part because of differences in the way the policies were drafted. The policy in Argos was Category 1(a) – presumptively lawful – because it made clear that the purpose for the rule was workplace safety, while the policy in Cott Beverages was Category 1(b) because it did not include language that the basis for no cell phones or personal items in the work place was due to safety concerns. As such, employees were less likely to interpret the rule as protective in nature. This provides helpful drafting guidance for employers to make apparent if a purpose of the policy is for safety concerns, which would presumably short-circuit the analysis before the Board and lead to a quicker lawful finding.

Tags: Boeing, Cell Phone Rules, employer policies, handbook policies, NLRA, NLRB, Section 8(a)(1)