Labor Relations Update

Guidance: Can Employers of Unionized Workers Require the COVID Vaccine?

The Coronavirus pandemic has spawned a lot of questions—and a lot of headaches—for employers, who within the past year have needed to adapt to rapidly changing health, regulatory, and technological landscapes. With the long-awaited arrival of a vaccine comes even more questions for employers: Can I require my employees to get vaccinated? Can I require employees who don’t get the vaccine to follow other safety precautions? For employers with unionized employees, there are additional considerations under the NLRA. Employers have bargaining obligations to their unionized workforces, so whether employers can require employees to be vaccinated, where/when/how vaccines will be administered, and whether discipline can be imposed on those who refuse a vaccine will depend on the terms of the collective bargaining agreement and/or require additional bargaining with the employees’ union.

We have developed several materials to help employers navigate the potential bargaining obligations with respect to mandatory vaccination policies. Visit our website to view an infographic of the decision-making process employers should engage in when considering a mandatory vaccine policy for unionized employees. Our website also offers a list of frequently asked questions (“FAQ”), answering common questions from clients and employers based on the state of NLRB case law today.

As always, we will continue to monitor the latest updates and trends concerning Coronavirus and the workplace. Check back here, or sign up for the email newsletter, to stay up-to-date!

NLRB: Employer’s “Hard-Bargaining” Proposals—By Themselves—Did Not Violate Duty to Bargain in Good Faith

In Universal Health Services, Inc., 370 N.L.R.B. No. 118 (April 30, 2021), the Board dismissed a complaint alleging that an employer’s bargaining proposals seeking significant concessions violated the duty to bargain in good faith.  Notably, the Board found that even when faced with extreme proposals, a union must still “test” the employer’s willingness to make concessions, and must itself contribute to bargaining by offering counterproposals.

Factual Background

In anticipation of the expiration of their prior CBA in December 2016, an employer and a union began negotiations over a successor agreement.  The employer warned that it sought to rectify “numerous deficiencies” in the prior agreement and alter many of its provisions.  The employer opened negotiations with a set of four employer-friendly proposals: (1) its Grievance and Mediation proposal, along with its No Strikes, No Lockouts, and Management Rights proposals; (2) its Discipline proposal making disputes over discharges no longer subject to binding arbitration; (3) its Union Security proposal removing the union security provision in the parties’ expired CBA; and (4) its Wage proposal, which gave it substantial discretion over pay.

During the course of negotiation, the union’s counsel was fond of using profanity and colorful language to demonstrate his contempt for the employer’s positions.  He labeled one proposal as “a nothing burger” and called another “an absolute waste of everyone’s time.” He told the employer’s representatives to “kiss my a–” and to “get the f— out of here.”  The union counsel responded to employer proposals with one-word denials such as “reject” or “no”, and often failed to offer written counterproposals.  In contrast, the employer made significant concessions in response to ongoing discussions, such as by lessening the length of time disciplinary actions would remain in employees’ files or offering to work with the union to place employees within its proposed pay ranges.  At one session, the employer noted that the union had failed to counter 15 of its proposals, while the employer had responded to all but two from the union.

More than 18 months after the employer presented its initial proposals, the union made counterproposals containing significant revisions to what had already been agreed upon by the parties.  Nonetheless, the employer discussed the counterproposals, and continued to express its willingness to negotiate.  In October 2018, the employer received a petition signed by a majority of employees in the bargaining unit, which it considered clear and unequivocal proof that the union had lost the support of a majority of unit employees.  The employer withdrew recognition from the union, and began to unilaterally implement its proposals.

The union filed unfair labor practice charges.  An Administrative Law Judge determined that the employer engaged in bad faith bargaining in violation of Section 8(a)(5).  The employer appealed to the Board.

Analysis

A Board majority (Members Ring and Emanuel) reversed the ALJ and dismissed the complaint.  The Board began its discussion by observing that while Section 8(d) of the NLRA requires parties to negotiate in good faith, this obligation “does not compel either party to agree to a proposal or require the making of a concession.”  Thus, the Board must ultimately determine, under the totality of the circumstances, whether “the employer is engaging in hard but lawful bargaining” or is instead “unlawfully endeavoring to frustrate the possibility of arriving at any agreement.”

Where it is alleged that an employer violated its duty to bargain in good faith on the basis of its bargaining proposals, the Board will not evaluate whether specific proposals are “acceptable” or “unacceptable”, but must consider whether the employer seeks to “frustrate agreement” on the basis of objective factors.  More significantly, the Board will not find an employer failed to bargain in good faith “if the union assumes that the employer’s initial proposals reflect unalterable positions without testing the employer’s willingness to engage in the give and take of collective bargaining.”

The Board pointed out that the employer had informed the union that one of the disputed issues, a union security clause, was ultimately included in a CBA with another union after a “back and forth” process.

The Board emphasized that the employer did not insist on its proposals as all-or-nothing.  Instead, the employer “advanced its proposals as entry points for discussions, repeatedly invited the Union to offer counterproposals, never refused to entertain counters on the rare occasions the Union offered them, and ultimately withdrew its no-strike proposal”, as well as other concessions.  The Board found that under these facts, the employer did not seek to frustrate any possible agreement.

The Board noted that the employer did not violate its duty to bargain by seeking significant concessions in its initial proposals, and observed that it had “substantial leverage” because a long time had passed since the employees had received raises.  The Board found that the employer was not required to bargain against itself in response to the union’s absent counterproposals, and that it was not bad-faith bargaining to present a “wish list” or “kitchen sink” proposal in its initial position.  As a result, the Board reversed the lower court and dismissed the union’s complaint, holding that due to the above considerations, as well as the lack of any evidence of improper conduct away from the bargaining table, the employer did not engage in bad faith bargaining.

Chairman McFerran Dissents

In her dissent, Chairman McFerran noted there was no disagreement over the basic legal principles but that “[w]e differ, and differ sharply, on how to apply the law to the facts presented.”  Specifically, the Chairman noted that the Board recently ruled that the employer’s conduct in a similar case, discussed here, violated the Act, and that “an employer can make a mockery of the duty to bargain by adhering to proposals which clearly demonstrate an intent not to reach an agreement” with a union.

Takeaways

This case demonstrates how the conduct of the parties can greatly impact a determination of whether the bargaining constituted bad faith.  The majority here noted that the employer made some hard bargaining proposals which might seem distasteful on first blush.  The fact that the union failed to respond materially other than to reject the proposals without making a counter-proposal left the employer with a difficult choice:  modify its own proposal or simply hold onto the proposal until a meaningful response was received.  However, employers should note that while it is permissible to take an “extreme” position initially, employers must still engage in meaningful discussions and seriously consider a union’s counterproposals during subsequent bargaining.  The outcome of the “give and take” between employer and union ultimately rests on the strength of the parties’ positions.  This is a case that undoubtedly would be decided differently under a different Board.  At least for now, an employer does not violate its duty to bargain by sticking to its guns, so long as its actions remain reasonable.

Ninth Circuit Overturns Board Decision Finding Unlawful Secondary Picketing, Citing Insufficient Evidence of an Intent to Coerce a Neutral Employer

Last week, the United States Court of Appeals for the Ninth Circuit overturned a decision by the NLRB dismissing a complaint against two joint employers alleging unlawful termination in retaliation for picketing activity. The Court, reversing the Board, found that the employees’ picket was not unlawful secondary activity and therefore did not lose the protection of the Act. Service Employees International Union Local 87 v. NLRB, Case No. 19-70334 (Apr. 28, 2021).

Background

The case involved a ULP charge filed by the union on behalf of terminated employees against their primary employers, a building services company and a janitorial services subcontractor. A property management company hired the building services company to provide janitorial services to one of the buildings it managed. The building services company subcontracted the work to the janitorial services subcontractor who directly employed the employees to perform the janitorial work.

In response to issues concerning wages and other working conditions, the employees, with the assistance of the union, organized two pickets in front of the building for which the employees provided janitorial services. At the conclusion of the pickets, several employees were fired by the janitorial services subcontractor, and the building services company terminated its contract with the property management company and, consequently, with the subcontractor. The union filed a ULP charge against the primary employers, alleging unlawful termination in retaliation for protected activity under the Act. However, the NLRB credited the employers’ affirmative defense and found that the employees lost the protection of the Act by engaging in secondary activity in violation of Section 8(b)(4)(ii)(B) of the Act. The Board held that the employees’ picketing constituted secondary activity intended to pressure a neutral party, the property management company, to “cease doing business” with the primary employers.

Analysis

Under the Act, conduct that coerces, threatens, or restrains a neutral employer with the objective of pressuring the neutral employer to “cease doing business” with the primary employer, or the employer with whom employees have a labor dispute, constitutes unlawful, secondary activity. Conduct is found to have this requisite secondary objective when it seeks to force the neutral employer to terminate its business relationship with the primary employer or to pressure the primary employer into changing its labor policies. The Board found that the General Counsel and the union failed to establish that the picketing clearly disclosed that the dispute was with the primary employers, the building services company and the subcontractor, creating a rebuttable presumption that the picketing was unlawful secondary activity. The Board further held that the picketing had an impermissible secondary objective.

On appeal, the Court concluded that the Board’s finding of unlawful picketing activity was not supported by sufficient evidence but rather was based on the “thinnest of reeds”.  Contrary to the Board, the Court found that the picketing employees clearly indicated that their dispute was with their primary employer, stating that the single sentence in a leaflet isolated by the Board in its analysis did not obfuscate the plain language of the picketers’ signs and materials that called on the building services company by name.

The Court also disagreed with the Board’s finding that there was independent evidence that the employees’ picketing had a secondary purpose, namely to pressure the property management company to “cease doing business with” the primary employer. The Court held that the Board placed too much weight on statements made by employees to the property manager during the picketing, noting that none of the picketing employees’ signs or leaflets mentioned the property management company and there was no evidence in the record showing that the employees requested the property management company to intervene or threatened action against the neutral employer. As such, the Court held that the Board erred in concluding that the employees’ picketing violated Section 8(b)(4)(ii)(B) of the Act.

Takeaway

The Court’s holding suggests that the evidentiary standard for finding an impermissible secondary objective is fairly significant. While the Board’s interpretation of the Act, including the meaning of unlawful secondary activity under Section 8(b)(4)(ii)(B), is owed deference from reviewing courts, the Ninth Circuit’s decision in this case indicates that federal courts can and do intervene where the Board’s decision, in the court’s opinion, is not supported by sufficient evidence. Depending on whether other circuit court of appeals follow the Ninth Circuit’s precedent, this decision may increase the evidentiary burden that entities must carry to show that otherwise concerted activity is secondary in nature, thus losing its protection under the Act.

NLRB Declines to Address Validity of Acting GC’s Appointment, Instead Deferring the Issue to the Courts

On April 30, 2021, in National Association of Broadcast Employees & Technicians, 370 NLRB No. 114 (2021), the Board declined to opine on the validity of President Biden’s termination of former General Counsel Peter Robb and subsequent replacement with Acting General Counsel Peter Sung Ohr.  It now sets the stage for a federal court of appeals – and potentially, the U.S. Supreme Court – to weigh in on the issue of whether Ohr’s appointment and his subsequent actions as Acting General Counsel are valid.

As we discussed here and here, Robb, who was in the last year of his four-year term, was terminated shortly after President Biden’s inauguration on January 20, 2021, after Robb refused to resign.  Robb’s termination, and the subsequent appointment of Acting General Counsel Peter Sung Ohr, has been the basis of legal challenges in several cases before the Board.  The parties challenging the appointment have argued that under Section 3(d) of the Act and the Appointments Clause of the U.S. Constitution, Robb was only removable for cause; Acting GC Ohr asserts that Robb could be removed at will.

The Board’s decision noted that “[t]his was far from the first time that the Board has been asked to consider a challenge to the validity of the President’s actions with respect to one of the Board’s Presidential appointees or designees” and that prior Boards have addressed these challenges in a variety of ways—such as by declining to address their merits, finding a lack of jurisdiction, or rejecting them without detailed analysis.

This Board found that while its members held “different views” on the appropriateness of prior approaches, they were in agreement that the Board had no authority to remedy an invalid appointment without halting the operations of the agency, and doing so would violate its duty to administer the NLRA.  Thus, the Board determined that “[i]t is for the courts, not the Board, to make the initial and final determinations on the issues presented here.”

The Board’s decision is appealable to the federal circuit courts, and may ultimately be decided by the U.S. Supreme Court, which addressed a similar challenge to the appointment of a NLRB General Counsel in 2017, in NLRB v. SW General, Inc., finding that then-Acting General Counsel Lafe Solomon improperly served as NLRB General Counsel while awaiting Senate confirmation that never came amidst political gridlock.

The Board declining to address this issue is not surprising.  We must now wait to see what the federal courts say about this matter.  Should the courts conclude that Robb’s firing and Ohr’s appointment were invalid, it will generate significant uncertainty and years’ worth of litigation. We will certainly keep an eye on this and keep you all posted with any updates.

Biden Administration Announces White House Task Force on Worker Organizing and Empowerment

On Monday, April 26, 2021, the White House released a press briefing detailing the establishment of a new White House Task Force on Worker Organizing and Empowerment (the “Task Force”).  The Task Force, which the White House describes as a “whole-of-government” approach to empowering workers to organize and bargain with their employers, will be chaired by Vice President Harris and vice-chaired by newly appointed Secretary of Labor, Marty Walsh.  The Task Force will include at least twenty cabinet members and heads of federal agencies.

Within 180 days – by October 23, 2021 – the Task Force must specifically issue two recommendations to the White House.  First, the Task Force must identify which existing policies, programs, and practices can be used to promote worker organizing and collective bargaining in the federal government. Second, the Task Force must make recommendations for new policies or identify what regulatory/statutory changes are needed to achieve the Task Force’s four specific goals of: (i) leading by example by ensuring the federal government encourages worker organizing among its workforce; (ii) facilitating worker organizing nationwide, by mobilizing federal government policies to provide workers the opportunity to collectively bargain; (iii) increasing worker power in underserved communities by addressing challenges in jurisdictions with restrictive labor laws, in industries with heightened barriers to organization, and for women and people of color; and (iv) increasing union membership.

The establishment of the Task Force reinforces the Biden administration’s commitment to promoting workers’ rights, and Task Force activity will be important to monitor for a number of reasons.  First, it is unclear how the Task Force will support or interact with the passage of the Protecting the Rights to Organize Act (the “PRO Act”), which would amend the National Labor Relations Act, and which is currently before the Senate after passing the House of Representatives in March 2021.  Second, although the Task Force’s immediate mandate is to identify means in which the federal government can better promote organizing and collective bargaining within its own workforce, the Task Force’s policy recommendations and proposals could have broader implications for private employers as the Biden administration and House Democrats seek to limit states’ abilities to enact or enforce right-to-work laws.  Particularly because some predict that the PRO Act may not pass the Senate in its current form, it is possible that some of the statutory recommendations arising out of the Task Force may find their way into future legislation or regulations impacting employers nationwide.

We will continue to keep you updated on developments arising out of Task Force activity.

NLRB Upholds Contract-Bar Doctrine in Current Form

On April 21, 2021, the National Labor Relations Board (the “Board”) declined to eliminate or modify its long-standing contract-bar doctrine, which purports to provide stability in the relationship among the employer, a collective bargaining representative, and its employee-members.  The Board previously invited comment on the continued application of the contract-bar doctrine in July 2020.

The contract-bar doctrine prohibits all petitions that could oust an existing union, by employees who are covered by a valid collective-bargaining agreement for three years or the duration of the agreement – whichever is shorter.  The doctrine permits an election petition to be filed by representative employees only during a 30-day “window period,” which is typically between the last 60 and 90 days prior to the expiration of the collective bargaining agreement; after the contract expires; or after the third anniversary of any CBA that is longer than three years.  The final 60-day period of the agreement is considered an “insulated period,” where no election petition may be filed.

The Board undertook a review of the contract-bar doctrine in Mountaire Farms, Inc., 370 NLRB 110 (2021).  In that case, the petitioner rival union sought to decertify a union representing roughly 800 employees.   The incumbent union opposed the decertification petition because it was filed outside of the window period.  The Regional Director nevertheless processed the petition, finding that the contract-bar doctrine did not apply because the contract contained an unlawful union-security clause, thereby exempting it from the contract-bar doctrine’s application.  The union filed a Request for Review with the Board of the Regional Director’s decision.

Upon granting the Request for Review, the Board – in a common practice when the Board is considering overturning long-standing precedent – invited the parties and interested amici to file briefs on whether the Board should retain the contract-bar doctrine in its current form, modify the doctrine, or rescind it entirely.  After reviewing briefs of the parties and 17 amici, the Board reversed the Regional Director’s decision and decided not to modify the contract-bar doctrine “at this time.”  The Board credited the argument that the relevant date for the window period may not always be clear under the current contract-bar doctrine.  However, the Board found that “a sufficiently compelling case has not been made for any particular proposed modification.”

Member William Emanuel would have reduced the contract-bar period to 2 years and increased the window period to 60 days.  According to Member Emanuel, the current contract-bar doctrine prioritizes labor relations stability at the expense of employee free choice.

Board Chair Lauren McFerran agreed that no modifications should be made to the contract-bar doctrine, but found little support for the claim that the window period was unclear.  McFerran noted that she did not take any position as to whether a shorter or longer contract bar period might be appropriate, and stated that she did “not join her colleagues’ observations about the potential problems with current law.”  This could indicate that the Board likely will not consider changing the contract-bar doctrine when constituted with a majority of Democrats later this year.

New York State Bill Mandating COVID-19 Safety Standards in the Workplace Provides Carve-out for Unionized Employers

As discussed in greater detail here, Governor Andrew Cuomo is poised to sign into law S.1034B/A.2681B, also referred to as the New York Health and Essential Rights Act, or the “Hero Act.”

The Hero Act has two main components.  First, the state Department of Labor, in consultation with the state Department of Health, shall create an airborne infectious disease safety standard, as well as a model airborne infectious disease exposure prevention plan, and employers either must adopt the plan and standards, or create standards that meet or exceed the model.  Second, employers with at least 10 employees must allow their employees to create joint labor-management workplace safety committees.

As health and safety issues are routinely negotiated between unionized employers and the employees’ collective bargaining representative, the Hero Act contains a CBA waiver provision, permitting employers and unions to explicitly agree to waive the requirements of the bill, as long as the waiver “explicitly reference[s]” the statute.  Employers should therefore keep this in mind if they are actively or imminently negotiating a successor collective bargaining agreement, and even if not, such waivers could be negotiated mid-term.

Employers who negotiate such waivers with their respective unions should be cognizant of the fact that they may be obligated to adopt certain health and safety prevention plans for their non-union employees, notwithstanding the waiver as to some of its employees.  Employers should also be aware of any other operative federal, state or other local health and safety guidance that may create additional obligations.

In addition, the bill also expressly provides that nothing therein “shall be deemed to diminish the rights, privileges, or remedies of any employee under any collective bargaining agreement.”  In other words, if a CBA provides for rights greater than prescribed by the bill, then the CBA rights and obligations continue to govern the parties’ relationship.

We will keep you posted as the bill is expected to be signed into law in the near future.  Once the Hero Act becomes law, the New York State Departments of Labor and Health presumably will begin to issue model plans on an industry-specific basis.  We will also monitor whether the bill is challenged in any forum, including potentially on federal preemption grounds.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

Employer’s Policies On Blogging, Solicitation and E-Mail Signature Blocks Lawful, NLRB Rules (For Now, Anyway)

Over the past few years, the National Labor Relations Board has frequently weighed in on employer’s workplace and employee handbook policies, examining whether an employer’s policy impacts employees’ rights under Section 7 of the National Labor Relations Act.  Employers received a needed dose of clarity in Boeing Co., 365 NLRB No. 154 (2017), where the Board set forth rules for interpreting a facially neutral policy, rule or handbook provision.  As noted at the time, employers were sure to see Boeing’s practical impact as more cases were adjudicated under its new framework.  In David Saxe Productions, LLC, 370 NLRB No. 103 (2021) the Board reviewed an employer’s policies with respect to blogging and non-solicitation, applying Boeing’s test.  The Board also examined the employer’s policy with respect to email signature blocks, though did not apply the Boeing framework to that rule.

 Employer’s Blogging Policy

The employer’s blogging policy provided that, while acceptable when done in a professional and responsible manner, employees were not to engage in any blogging that would “harm or tarnish the image, reputation and/or goodwill” of the employer.  The Charging Party union challenged this rule as an unlawful restraint on employees’ Section 7 rights.  While the ALJ found that this policy violated Section 8(a)(1), the Board reversed.  The Board held that under a proper application of the Boeing Category 1(b) balancing analysis, the employer’s rule had a legitimate business justification and therefore was lawful.  Under the balancing test, though the rule against detrimental messages may adversely affection employees’ Section 7 rights, that concern is outweighed by the employer’s legitimate interest in protecting its reputation.

Employer’s Non-Solicitation Policy

The employer also maintained a rule that directed requests from outside people or organizations should be deferred to human resources.  The ALJ found this policy to be an unfair labor practice.  Again, the Board overruled the ALJ, finding that the rule was indeed lawful.  While the ALJ again applied Boeing Category 1(b) balancing test, the Board held that this rule, rather, was properly analyzed as a Category 1(a) rule – meaning it is lawful if, when reasonably interpreted, it does not prohibit or interfere with the exercise of NLRA rights.  Because the rule, on its face, applied to outside persons, and because “under long-settled precedent, such persons or entities have no Section 7 right to access the [employer’s] premises in the first place” except in certain inapplicable situations, the rule was indeed lawful.

Employer’s Signature Block Rule

Finally, the employer had in place an email policy stating in relevant part that employees may not customize their signature blocks.  While the ALJ and Board agreed that this policy was lawful, the ALJ did so based on Purple Communications, Inc., 361 NRLB 1050 (2014), which has been since overruled.  The Board instead applied Caesar’s Entertainment, 368 NLRB No. 143 (2019) and stated that there is “no precedential basis for finding that employees had the right to include Section 7-related messages in their signature blocks.”  Moreover, because the employer’s rule did not permit any alteration of signature blocks whatsoever, it did not discriminate against union activity nor could it possibly have a disparate impact on union activity.

Takeaways

It is highly likely that within a year or so, the Board will return to carefully scrutinizing each fragment of an employer policy to weed out potential problems.  For now, the current Board continues to apply precedent established in the past few years when analyzing workplace rules and policies.  While it remains to be seen whether the Board will soon return to previous era decisions such as Purple Communications or Lutheran Heritage, which Boeing replaced, employers, for now, should take comfort in the legality of their workplace and handbook rules, policies and provisions provided their policies are facially neutral, do not interfere with employees’ NLRA rights, or whether the employer has a legitimate justification that outweighs and adverse impact to employee’s NLRA rights.   The no solicitation ruling is non-controversial and perhaps was based on an error.  However, because it is possible that the blogging and signature block policies found to be lawful in this case could be found unlawful soon, employers should monitor developments at the NLRB closely.

NLRB General Counsel Promises “Vigorous” Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social Issues and Health and Safety Concerns

On March 31, 2021, the NLRB’s Acting General Counsel Peter Ohr issued a Memorandum entitled “Effectuation of the National Labor Relations Act through Vigorous Enforcement of Mutual Aid or Protection and Inherently Concerted Doctrines” to all Regional Directors.  While the Memorandum does not change NLRB precedent in any respect, it is a preview of the Office of the General Counsel’s enforcement and litigation strategy, which could lead to changes in the law over the next several months and years.

At its core, the Memorandum articulated the Acting General Counsel’s desire to aggressively enforce employees’ Section 7 rights to engage in “mutual aid or protection” and “inherently concerted” activities well-beyond conduct that is a precursor to a union campaign, by extending such conduct to employees’ political and social justice advocacy, which is a trending topic in nearly all workplaces today.

The health and safety concerns underlying the COVID-19 pandemic and the percolating social justice movements over the last year have created a confluence of circumstances resulting in increased employee interest in advocating for “hot button” social issues in the workplace.  This dynamic has been on full display by union leaders seeking to organize new members around more social issues.  This is exemplified by graduate students seeking to organize and form unions, while at the same time, advocating for social justice concerns on campus.

“Mutual Aid or Protection in Today’s Landscape”

Ohr advocated for an expansive view of “mutual aid or protection” in line with speech that is commonplace in the workplace regarding the social issues of today.  Importantly, however, Ohr recognized that such conduct becomes protected by Section 7 of the Act when it “has a direct nexus to employees’ interests as employees.”

Ohr cited examples of when employee conduct gains protection of the Act, which is instructive:  for instance, public commenting, advocating for and engaging in work stoppages in support of an increase of the minimum wage – a legislative issue – would be protected by the Act when voiced by employees who earn around minimum wage.  Similarly, employees who work with or are undocumented immigrants who protest in response to a sudden crackdown on undocumented immigrants, may also be protected.

Ohr promised to “robustly enforc[e] the Act’s provisions” in this area, while commenting on the Board’s recent decisions that applied “mutual aid or protection” narrowly.  While Ohr may disagree with the Board’s 2019 decisions in Alstate Maintenance, 367 NLRB No. 68 (2019) and Quicken Loans, 367 NLRB No. 112 (2019), Ohr did not go so far as to criticize the Majority’s holdings in those cases.  Instead, Ohr noted where those decisions “left avenues for demonstrating mutual aid or protection that should be fully utilized.”  Ohr provides a playbook to employees and unions regarding how to gain protection of the Act:  ensure that workplace objections or protests can be tied to the employees’ interests in the workplace as employees.

For instance, the Board in Alstate Maintenance (which we discussed here) held that the employee’s comment to his supervisor that he did not want to perform a job because the customers did not tip was deemed unprotected activity.  However, the Board noted that the comment would have been protected if it were aimed at changing employer policies or practices.  Similarly, in Quicken Loans, the Board concluded that an employee’s comment about not wanting to handle a customer complaint because it was a “waste of time” was not protected because it was not aimed at changing worker policies.

“Finding Certain Conduct to be Inherently Concerted”

Ohr also discussed his desire to adopt a broad definition of what constitutes “inherently concerted” activity in terms of workplace speech.  Of course, in order to obtain Section 7 protection under the Act, the activity must be “concerted” (in addition to being protected).  To be concerted, the conduct could involve only a speaker and a listener (as opposed to multiple individuals speaking together).  In addition, Ohr noted that contemplation of group action is not a required element.

Ohr indicated that the General Counsel’s Office likely would seek a broad application of what constitutes “inherently concerted” activity.  Specifically, the Acting General Counsel may seek to safeguard employee rights to engage in speech related to workplace health and safety issues and racial discrimination, which have not yet been endorsed by the Board – in addition to the categories of speech that have been traditionally protected, such as wages, job security and hours of employment.

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It certainly bears watching how the Acting General Counsel intends to “vigorously” enforce employees’ Section 7 rights pursuant to this Memorandum, and whether the law will change in any respect.  Stay tuned!

Unsigned and Torn Up: NLRB Weighs In On Issues Arising During Mail-Ballot Elections

Though the National Labor Relations Board has established a pathway for holding in-person union elections, mail-ballot elections continue to be the norm in many Regions across the country.  Of course, the more mail-ballot elections that occur, the more unique issues arise.  In XPO Logistics Freight, Inc., 370 NLRB No. 99 (2021), the Board weighed in on two such issues that arose as employees attempted to return their mail-in ballots to the Region.  First, when a ballot is returned unsigned, the Board discussed how much time is “sufficient time” for the Board to send that employee a new ballot.  Second, the Board discussed conclusions to be drawn from a damaged ballot.  Both issues are not uncommon during mail ballot elections, and the Board’s decision provides clarity to employers faced with these problems.

Background

The Region conducted a mail ballot election of the employer’s employees in August 2020, with a deadline to return ballots by August 17.  It ultimately received four unsigned ballots, one ballot with the employee’s name printed rather than signed, and one damaged ballot.  The Region voided all six ballots.  The employer challenged two others on separate grounds.  The ballot count ended up being 54 to 60 against unionization, meaning the voided and challenged ballots could be determinative.  After a series of objections lodged by the union, the Regional Director found that the Regional Office potentially disenfranchised voters by failing to send them duplicate voter kits so they could cure their ballots, and found that the damaged ballot was a “yes” vote despite the fact that the right half of the ballot was torn off.

Ballots Returned Unsigned

The Board analyzed one particular ballot, returned unsigned on August 14.  The Regional Director had held that the Regional Office had “sufficient time” to mail this employee a duplicate voter kit – and by not doing so had disenfranchised the employee.  The Board, however, reversed the Regional Director’s decision, holding that despite the fact the employee lived in the same county as the Regional Office (or in an adjacent county), August 14 to August 17 (the return date) was simply too short a time for the employee to receive and return the kit by mail.  Because there was insufficient time left for the Regional Office to send a duplicate ballot kit, this employee was not disenfranchised.

Ballot Returned Damaged

The Board further analyzed a ballot returned torn in half, but with a “yes” vote clearly marked.  Again reversing the Regional Director, the Board, relying on Midland Steamship Line, Inc., 58 NLRB 1091 (1944), held that a ballot torn in half is void, despite the fact that the “yes” vote was clearly marked.  The Board noted that it “avoids speculation or inference regarding the meaning of physical altercations to a ballot,” and that the Regional Director “necessarily had to resort to speculation as to the possible meaning of the voter’s physical alteration to the ballot at issue here.”  Because speculation about the voter’s intent was involved, the Board reversed and voided the ballot.

Takeaways

Mail ballot procedures are in theory rigid and designed to ensure eligible employees have plenty of time to vote.  The procedures clearly state that the employee must sign the ballot and return it by a particular date. As this case demonstrates, however, there are many opportunities to challenge the balloting.  It is unclear whether the employee printing the name instead of signing it just did not understand – or disregarded – the procedures.  It also is unclear whether delays in the mail delivery contributed to a ballot being received with no time to correct.  While most employers prefer in-person balloting, it is likely mail balloting will continue to be the norm even after the pandemic is over.  So long as mail-in ballots continue to be used for the majority of elections, unique issues will continue to arise.  With the Board’s decision in XPO Logistics, employers can at least have some clarity with respect to some of the more typical issues that may arise.

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