Labor Relations Update

Recent ALJ Decision Provides Important Nuance Regarding Workplace No Recording Rules

In late 2017, the NLRB in Boeing Company, 365 NLRB No. 154 (2017), established a new three category system for classifying various employer policies. The new system was designed to balance a “work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.” This balancing analyzes each policy on a case-by-case basis.

In Boeing, the NLRB determined that the employer’s “no-camera” rule was lawful because Boeing had articulated sufficient justifications outweighing the “no-camera” rule’s potential impact on restricting Section 7 rights. These justifications included security protocols necessary to perform classified work for the U.S. government. This holding, could lead an unsuspecting employer to believe that all no recording policies in the workplace will be found lawful under the new Boeing standard, however, a recent ALJ decision highlights some of the contours of how such test is applied to other no recording policies.

In ADT, LLC and International Brotherhood of Electrical Workers, Locals 46 and 76,19-CA-216379, an ALJ decision issued on July 9, 2019 found that an employer violated the NLRA by terminating two employees who it claimed violated its workplace recording policy. There, the employer (“ADT”) terminated two employees for recording “captive audience meetings” held in the run-up to a decertification election at the employer’s facility. ADT scheduled two such meetings and divided the workforce into two groups for attendance purposes. In advance of the meetings, ADT emailed employees specifying which of the two meetings they were to attend.

Patrick Cuff (“Cuff”), a Union steward, suspected that ADT was intentionally scheduling pro-union employees to attend one meeting and anti-union employees to attend the other and that different content would be shared at the two meetings. Cuff’s request that he and the other shop steward be split up between the two meetings so that they would know what was said at both meetings was denied.  Instead, Cuff surreptitiously recorded the meeting he was assigned to on his cell phone. Meanwhile, Mohammed Mansour (“Mansour”), an employee who attended the other meeting, recorded his meeting without management approval. It is important to note that Mansour is dyslexic and speaks English as his second language. Moreover, this was Mansour’s first experience being in a union. Thus, he recorded the meeting in case he wanted to replay what was said so that he could better understand the content.

Several days later, Cuff obtained a copy of Mansour’s recording. Through comparing the two recordings, Cuff confirmed his suspicions about content of the two meetings being different. When ADT found out about the recordings they conducted an investigation, which led to both Cuff and Mansour being terminated.

ADT argued that these two employees were terminated for violating ADT’s workplace recording policy, which in relevant part states that: “Audio or video recording of coworkers or managers is prohibited where (1) such recording occurs without explicit permission from all parties involved in those states with laws prohibiting consensual recording…” The state of Washington, where the employer is located, is a two-party consent state, and the recordings were made without the consent of ADT. However, Washington’s two party consent law only protects private conversations. In considering the Washington statute, the ALJ determined that employer meetings about unionization are not private matters, and that the two employees’ activities were protected under the NLRA because Mansour recorded the meeting so he could learn more about the benefits of a union, and Cuff recorded the meeting in an attempt to counter ADT’s arguments made during the meetings.  The ALJ determined that the two employees neither violated ADT policy nor the Washington state statute, and thus, ADT’s termination of the two employees violated the NLRA.

While the Board in Boeing held that a no recording policy can comply with the NLRA under the new test set forth in that case, the ruling in ADT makes clear that employers must not be lulled into thinking that all no recording policies are lawful under the new Boeing standard; and that any discipline issued for putative violations of an unlawful policy may subject the employer to further liability under the Act. Moreover, the case makes clear that an employer may not necessarily be able to rely on a state’s one or two party consent statute as a defense. While ADT is not a decision from the NLRB, the ruling in ADT provides a helpful reminder to employers who have or are interested in having a no recording policy that such policies should be reviewed with labor counsel to determine whether they comply with the Act.

Independence Day Comes Early For Employees Seeking To Shed Union Representation

On the eve of Independence Day, the NLRB, in a 3-1 decision (Member McFerran dissented), clarified the law concerning withdrawal and enunciated a new framework for determining whether a union has retained majority support at the conclusion of a contract term.

In Johnson Controls, Inc., 368 NLRB No. 20 (2019), the Board significantly streamlined the process for employees seeking to claim their own independence from their collective bargaining representative at the conclusion of the contract’s term.  Now, if a majority of employees demonstrate that they do not want to be represented by a union within a reasonable time before contract expiration, and if the employer anticipatorily withdraws recognition, the union’s recourse to reestablish majority support is through a Board-conducted, secret-ballot election – not in adversarial unfair labor practice proceedings.

Employers no longer will be subject to unfair labor practice charges if they anticipatorily withdraw recognition and the union subsequently demonstrates majority support at the contract’s term. In sum, the employer’s anticipatory withdrawal will not be subject to an immediate competing claim of “majority” support for union representation within the several weeks of the end of the contract.

Prior Framework under Levitz

Under well-established precedent in Levitz v. Furniture Co. of the Pacific, 333 NLRB 717 (2001), if an employer receives evidence, within a reasonable period of time before its existing CBA expires, that the union representing its employees no longer enjoys majority support, it may withdraw recognition when the CBA expires and suspend bargaining over a successor contract – this is referred to as “anticipatory” withdrawal of recognition.  Yet under that framework, the employer would be susceptible to a successful 8(a)(5) charge for refusal to bargain if – at the time the employer actually withdraws – there is evidence that the union re-acquired majority support.  This framework has been criticized over the years because of the high degree of latitude the union is allowed to challenge the withdrawal in an unfair labor practice proceeding despite there being no evidence that the employer in any way interfered with the employee’s wishes.

The difficulty with such a framework, the Board in Johnson Controls explained, is that a union may defeat an employer’s withdrawal of recognition in an unfair labor practice proceeding with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal – regardless of whether the employer knew that the union regained majority support.  Thus employers were left acting at their own “peril” under these circumstances; if subsequent union support was shown, then a remedy the Board would impose could be an affirmative bargaining order, which would preclude any challenges to the incumbent union’s majority support from as little as 6 months to as much as 3 years depending on if the parties reach a successor collective bargaining agreement.

The Levitz doctrine also created a so-called “last in time” rule, meaning that employees’ last preferences of union support (or lack thereof) were deemed determinative by the Board in an unfair labor practice proceeding.  This created an incentive for both unions and employers to fail to disclose the identities of signers on their respective sides for fear of retaliation.

The Johnson Controls Board concluded that the Levitz framework failed to properly safeguard employee free choice by requiring employees to testify at unfair labor practice proceedings, and it also did not promote labor relations stability as employers would make unilateral changes that would have to be reversed.

A New Framework

In Johnson Controls, the Board established a new framework for these situations:

  • If, within a reasonable time before an existing CBA or contract expires, an employer receives evidence that the union has lost majority status, the employer may inform the union that it will withdraw recognition when the contract expires, and it may refuse to bargain or suspend bargaining for a successor contract.
  • The union then has several options:
    • It may file an unfair labor practice alleging the employer initiated the union-disaffection petition or unlawfully assisted it; that the petition fails to make the employees’ representational wishes sufficiently clear; that the petition is tainted by serious un-remedied unfair labor practices; or that the valid signatures fails to establish loss of majority support.
    • Significantly, however, the Board will no longer consider in such cases, whether a union has reacquired majority status as of the time recognition was actually withdrawn. Notably, the Board did not change the existing law that the employer is not obligated to provide the union with a copy of its disaffection evidence at the time it withdraws recognition anticipatorily.  The union may acquire such evidence from its stewards and other pro-union employees, and the employer will be required to provide such evidence to the Region in any investigation.
    • The biggest change is that if a union wishes to reestablish majority status, it must file an election petition, which the Board will process without regard to whether the parties’ contract is still in force at the time the petition is filed. The election will determine whether a majority of unit employees wish the union to continue to represent them after the contract expires.

45-Day Window

The Board also refined what a “reasonable time” before contract expiration where an anticipatory withdrawal may be effected is – now, it is no more than 90 days before the contract expires.  In addition, a union must file an election petition within 45 days after the employer announces its anticipatory withdrawal – even if the employer gives notice within 45 days of contract expiration.  Consistent with existing precedent, a rival union may also file its own petition during the 30-day “open period” prior to contract expiration (i.e., 60- to 90-days before contract expiration).  Rival unions may also intervene if the incumbent union files an election petition.

The Board also stated that, to promote labor stability, employers are not required to withdraw recognition at contract expiration if the 45-day window for an election petition remains open or an election petition has been timely filed and an election remains pending.

Finally, when the incumbent union has filed an election petition within the 45-day window, employers who wish to continue recognizing that union are provided a “safe harbor” to continue doing so without unlawfully supporting a minority union under 8(a)(2).  The “safe harbor” does not apply, however, when a rival union has filed an election petition or has intervened in the upcoming representation case.  In that case, the employer must withdraw recognition.

 Dissent Would Eliminate Withdrawal as Option

Member McFerran dissented, and focused on the fact that an incumbent union is entitled to a continuing presumption of majority support that must be measured solely at the time the employer withdraws recognition – regardless of the status of such support at the time the employer anticipatorily withdrew recognition.  Member McFerran believed that the Levitz framework appropriately accounted for this important presumption.

Member McFerran also advocated for a rule that withdrawals of recognition should be unlawful absent an election; this position which was unanimously rejected by the Board in Levitz, most recently found support from then General Counsel Richard Griffin in 2016.  The Johnson Controls majority flatly rejected this concept again, noting that it would be anomalous to hold that an election is the only means for a union to lose majority support, where a union’s status under Section 9(a) may be gained through voluntary recognition.

Takeaways – Impact of New Standard on Unilateral Changes Post-Withdrawal

The new standard provides helpful guidance to employers when faced with a decertification petition, or other evidence of employee support to be rid of the union representative, near contract expiration.  It avoids the pitfalls attendant to the Levitz framework, when employers were required to take a leap of faith that the question as to the union’s continued majority support prior to contract expiration remained intact at the time of expiration despite clear evidence from the employees that they wished to be rid of the union.  Losing that bet – after the time and expense of a lengthy challenge at the Board in response to unfair labor practice charges – would be costly for the additional reason that the employer could be subject to an affirmative bargaining order and likely would have unilaterally implemented certain changes that would have to be reverted.

Johnson Controls also has a significant impact on an employer’s ability to take unilateral action following a lawful withdrawal of recognition.

  • Employers may make unilateral changes in terms and conditions of employment during the intervening period between the date the contract terminates and the date of an election; however, if an election petition has been filed, an employer should be wary of making unilateral changes, as any such changes during the pre-election “critical period” could risk tainting the election and would result in a second election if the union loses.
  • If the union loses the election and does not file election objections and/or challenge a potentially determinative number of ballots, then the employer may act unilaterally.
  • But if the union loses and files election objections and/or challenges a potentially determinative number of ballots, an employer is risking an 8(a)(5) charge if it acts unilaterally.
  • The same risks to acting unilaterally are associated with cases where the employer challenges a union election win. As above, if the employer acts unilaterally but the outcome of the challenges to the election is a union win or a second election is directed, then the employer’s unilateral changes could furnish grounds for the union to file subsequent objections if it loses.

Blocking Policy Next to be Addressed?

This is a fairly narrow ruling, covering only the situation where the employer is confronted with loss of union status prior to the expiration of the parties’ agreement.  The Board majority stressed it was not addressing the Board’s much criticized blocking policy, which allows a labor union to block a decertification petition, sometimes indefinitely, with little or no evidence of wrongdoing.  Obviously, the blocking policy is on the Board’s radar screen and likely will be addressed in the near future.

Employers No Longer Have To Allow Union Representatives Use of Public Areas, NLRB Majority Rules

Citing judicial criticism, as well as the original Supreme Court decisions on the issue, the NLRB swept away years of precedent permitting union representatives to access public areas of an employer’s premises.

In UPMC Presbyterian Shadyside, 368 NLRB No. 2 (June 14, 2019), the NLRB was confronted with the findings that an employer committed unfair labor practices when it ejected two union representatives from a cafeteria that was open to the public.

Common Occurrence – Presence of Union Representatives in Public Cafeteria

The case involved a fairly common occurrence.  The employer, a hospital, had a cafeteria on the 11th floor of the building, which was open to the public.

Two non-employee union representatives visited the cafeteria where they sat with employees an discussed organizational campaign matters.  Other employees stopped by to receive union literature and pins. A meeting was held by the union representatives which lasted for about an hour. An employee complained about the presence of the union representatives and a security officer was dispatched to the cafeteria.  The security officer confronted the representatives and told them they had to leave because the cafeteria was only for patients, their families and visitors, and employees.   During the encounter the security officer asked for the identification of employees sitting at the table with the union representatives.

A union representative pointed out that a woman sitting in the cafeteria was a friend of an employee who was waiting to have lunch and asked if that person would have to leave as well.  The security officer replied that the two union representatives would have to leave.

In the past, the employer had ejected two outside parties from soliciting in the cafeteria.  There was no evidence that the employer knowingly allowed any other third party to solicit in its cafeteria.

The union filed charges which alleged that the employer’s actions in the cafeteria violated Section 8(a)(1) by (1) the ejection of the union representatives, (2) unlawful surveillance of employees  and (3) by requiring employees to provide identification.

The Administrative Law Judge concluded that the employer committed an unfair labor practice as to all three of the allegations.

NLRB Majority Reviews Law and Concludes Employer Did Not Unlawfully Eject the Union Representatives or Unlawfully Surveil Employees

Three Board Members (Ring, Emanuel and Kaplan) reversed the ALJ as to the first two issues, concluding that the NLRB had departed from existing Supreme Court precedent in a manner that had been heavily criticized by circuit courts of appeal.  The NLRB reviewed the Supreme Court’s decision in NLRB v. Babcock and Wilcox Co., 351 U.S. 105, 112 (1956) which set forth the standard for nonemployee access to an employer’s property.  In that decision, the Supreme Court held:

It is our judgment . . .that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union though other available channels of communication will enable it to reach the employees with its message and if the employer’s notice or order does not discriminate against the union by allowing other distribution.

The NLRB noted that the two exceptions to circumstances where an employer can bar nonemployee organizers from the premises, inaccessibility and discrimination, were intended to be narrowly construed given the importance of private property rights.  The Board noted that over the years, despite applying the principles of Babcock and Wilcox, the Board “created an additional exception where nonemployee union organizers seek access to a portion of the employer’s property that is open to the public, such as a cafeteria or restaurant.”  In this regard, the Board noted that it has “consistently found that employers violate Section 8(a)(1) of the Act when the restrict public-cafeteria access for nonemployee organizers who engage in solicitation and other promotional activities but are not ‘disruptive.'”

The Board majority noted that this approach had been “soundly rejected” by a number of federal circuit courts of appeal and seemed inconsistent with the original analysis provided by the Supreme Court.  The Board then announced that it would reverse all cases supporting this third exception:

Therefore, to the extent that Board law created a “public space” exception that requires employers to permit nonemployees to engage in promotional or organizational activity in public cafeterias or restaurants absent evidence of inaccessibility or activity-based discrimination, we overrule those decisions.

The Board then announced the new rule for addressing nonemployees access to an employer’s area that is open to the public:

Accordingly, we find that an employer does not have a duty to allow the use of its facility by nonemployees for promotional or organization activity.  The fact that a cafeteria located on the employer’s private property is open to the public does not mean that an employee must allow any nonemployee access for any purpose.  Absent discrimination between nonemployee union representatives and other nonemployees –i.e., ‘disparate treatment where by rule or practice a property owner’ bars access by nonemployee union representatives seeing to engage in certain activity ‘while permit[ting] similar activity in similar relevant circumstances’ by other nonemployees–the employer may decide what types of activities, if any, it will allow by nonemployees on its property.

The Board then applied this new rule retroactively to all cases.

The Board’s application of the new rule to the case resulted in no violation of the law as to the ejection of the union organizers.  The Board first noted that the issue was not inaccessibility.  So, the issue was whether the employer acted discriminatorily by ejecting the union representatives. Here, the employer demonstrated that it had taken action in the past to prohibit solicitation by outside parties.  The Board did not see an inconsistency between the fact that there was a nonemployee friend waiting in the cafeteria because that person was not soliciting others.  The employer acted consistently with how it had treated outsiders engaged in solicitation and that was all that mattered.

The Board went out of its way to make clear that it was reversing any “precedent holding discrimination can be established merely by showing that the nonemployee union representatives were denied access to a public area within private property, without the Board considering the kind of ‘nondisruptive’ activity they were engaged in and whether the employer had permitted similar activity by other nonemployees.”

As to the second issue, whether the security guard engaged in unlawful surveillance, the Board concluded that the employer did not engage in surveillance because of longstanding precedent that recognizes that “management officials may observe public union activity, particularly where such activity occurs on company premises, without violating Section 8(a)(1) of the Act, unless such officials do something out of the ordinary.”

The Board did find a violation of the law for the security guard requesting identification from the employees present at the impromptu union meeting.  The Board held this action was chilling of protective rights.

Dissent Decries Overruling Precedent

Member McFerran dissented alleging, among other things, that the majority had misread the law.  The dissent’s opinion, weighing in at 10 pages, decried the overruling of precedent without proper notice, which has been a rallying cry of McFerran’s:

Today’s decision continues an unfortunate trend the Board.  Again, the majority mistakenly reverses precedent–narrowly statutory protections for employees and unions–without first providing notice to the public and inviting briefs, in a case that does not present a proper occasion for reconsidering the law.


Employers with cafeterias open to the public now have a bright line rule.  The employer now can bar any nonemployee from soliciting, including union organizers, so long as they bar all other nonemployees from similar activities.  A violation can no longer be established merely by the fact the employer barred a union representative from a public area.  The General Counsel must prove that the employer allowed similar conduct by other third parties before an allegation of disparate treatment can be established.

It is critical that the employer have a lawful non-distribution/non-solicitation policy in writing.  The employer must also, of course, uniformly enforce the policy across all third parties in order for this new case law to apply.

The true impact of this decision has yet to be seen as it is possible the new rule will just shift the focus of litigation to allegations of disparate treatment which can be hard to defend.  It is very important for employers to keep a written record of the instances in which they have enforced a valid non-solicitation/non-distribution so that they have evidence to defend claims of disparate treatment.

As to the notion that the Board is departing from some policy, written or otherwise, by not inviting briefs from the public, this criticism is hard to square with the practice of the agency in the last several years, if not decades.  While it may be ideal for the public to weigh in on significant changes to the law, the fact is the Board is not obligated to reach out to the public on every precedent change; certainly this has not been the agency’s practice.  In the last 10 years, prior Boards often overturned significant precedent with no notice to the public.  For sure, the prior Boards invited briefs on substantial issues, such as the joint employer standard, but there were many precedent changes the Board characterized as “significant” that were just announced without any prior notice and often without a quorum.

Employer’s Grant of Extra Holiday to All Employees Except Those Represented by Union Not Unlawful, NLRB Rules

Employers with union-represented employees also always have non-union employees, whether working in the office or at another worksite.  Invariably, there are differences between the wages, benefits, and terms and conditions of employment of the two groups, a natural consequence of the bargaining process.  A common situation arises when an employer makes changes in the workplace, whether it is a change to a payroll practice or offering new benefits.  The question is whether the change applies to the union-represented workforce.  Without any other circumstances, the answer generally is “no,” the change does not apply automatically to the represented group of employees for the simple reason that the change must be bargained.

The NLRB recently faced a situation where a group of unions claimed that a benefit granted to the non-union employees should apply to the bargaining unit employees, and that the employer’s failure to do so was unlawful.

In Merck, Sharp & Dohme Corp., 367 NLRB No. 122 (May 7, 2019), the employer has 23,000 employees in the United States, approximately 2700 of whom are represented by various unions in different plants.  At the time of the events of the case, none of the collective bargaining agreements were under negotiation.

Employer Grants New Holiday to Non-Union Employees Only

The employer’s business results exceeded its expectations and the employer wanted to celebrate and acknowledge the good news with its employees.  Ultimately, the employer settled on the grant of a new paid holiday, “Appreciation Day” which would be the Friday before Labor Day Weekend, converting a three day weekend into a four day weekend.  The employer announced this new holiday and stated that Appreciation Day “did not apply to those in US who are covered by [a] collective bargaining agreement.”

The  various unions representing the employees started to complain to the employer asking why Appreciation Day was not given to the bargaining unit employees.  Various employer officials responded with essentially two reasons:  First, the grant of such benefits cannot be made unilaterally “unless there is a provision” in the collective bargaining agreement.  Second, the employer had wanted to make changes to how it administers payroll and the 401K, changes it deemed to be “simple”, and the unions refused to discuss such changes telling the employer to “wait until contract negotiations.”

The unions filed unfair labor practice charges alleging that the employer was “retaliating” against the union in violation of Section 8(a)(3).

Administrative Law Judge Sees Animus

After trial, the Administrative Law Judge ruled that the employer violated the law because the employer’s rationale,–that it did not grant the holiday because the unions had refused to make other changes,– was retaliatory.  The Judge reasoned that the employer’s decision to exclude the union represented employees from Appreciation Day was motivated by union animus, finding “this motive represents straightforward punishment of union employees in retaliation for past protected activity under the Act.”  The Judge ordered the employer to make the union represented employees “whole” for the loss of the paid holiday.

The employer appealed.

NLRB Majority Reverses ALJ, Concludes Employer’s Reason Was Entirely Without Animus

A majority of the NLRB panel (Chairman Ring and Member Emanuel) reversed the ALJ’s ruling and dismissed the complaint.  The Board noted that it “has long recognized that an employer has a right to treat represented and unrepresented employees differently, so long as the different treatment is not discriminatorily motivated.”  The Board noted that in cases where the allegation is that the employer’s action is driven by an unlawful motivation, the General counsel bears an initial burden to show “(1) union or protected concerted activity, (2) employer knowledge of that activity, and (3) union animus on the part of the employer.”

Applying this framework the Board then analyzed the employer’s reason for not awarding Appreciation Day to represented employees. The Board noted employer was “not inclined” to approach the unions to bargain over this additional holiday because the unions “had, in the past, refused to agree to the [employer’s] midterm contract changes.”  The Board concluded that the Judge’s conclusion that this reason was “straightforward punishment” was incorrect because it “simply fails to take into consideration the everyday realities of the bargaining process.”  The Board expanded on the realities of the bargaining process:

‘Collective bargaining by its very nature is an ‘annealing process hammered out under the most severe and competing forces and counteracting pressures.'” . . .  The process, by its nature, may involve hard negotiation, posturing, brinkmanship, and horse trading over a long period of time.  Given this backdrop and the Board’s historical tolerance for such an ‘annealing process’ (so long as it does not cross the line into unlawful threats or bad faith), [the employer’s] articulation of [its] rationale was not an admission of unlawful retaliation  Consideration of prior bargaining positions and extant contractual benefits is not unusual in the course of a collective-bargaining relationship, nor is it evidence of an employer’s antiunion animus.

The Board found that the employer’s message was clear and lawful:  that if the unions were unwilling to discuss midterm changes to terms and conditions of employment, then they would have to “live with the limitations of their contractual benefits along with their advantages.”

Finally, the Board found that it was not animus for the employer to cite the fact that the law prohibited it from granting benefits unilaterally.

Dissent Sees Animus in Employer’s Actions

Member McFerran dissented, concluding that while “[n]othing in the Act required the Respondent to treat its union-represented and its unrepresented employees identically, but it was not free to treat them differently in order to punish represented employees for the statutorily protected actions of their Unions.”


This decision represents a very good articulation of the collective bargaining process, of how it rests on the relationship built by the parties and cannot be defined by a single event or action.  The Board majority viewed the context of the bargaining between the parties in its totality instead of focusing intently on one incident.  If the Dissent’s position were accepted then no party could every cite to the other party’s behavior without risking a finding of “animus.”  Labor relations is a complex business where actions cause reaction.  In this case, the unions steadfastly refused to bargain over changes during the term of the contract which was their right, of course, but that kind of inflexibility means the employer was less likely to approach the unions when the change was something positive.  Had the tables been turned, and the employer acted in an inflexible manner, the unions would likely have pointed to that behavior in refusing to agree to something in the future.  “Animus” is not defined by a party not liking the outcome.

Using a Cat to Chase the Inflatable Rat: NLRB General Counsel Urged Reconsideration of Board Precedent Regarding Banners and Signal Picketing of Neutral Employers

Continuing its efforts to overturn precedent, the NLRB General Counsel’s Division of Advice has issued a new advice memorandum looking to strike at the most recognizable sign of unionism in urban areas today – – the inflatable rat that is used to signal a labor dispute to the public.

It has been long held by the Supreme Court that while handbilling at a neutral employer’s business is lawful, picketing urging a boycott of the neutral employer is coercive and therefore unlawful.  Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council (DeBartolo II), 485 U.S. 568, 579-80 (1988).

The issue presented with inflatable animals and large banners is whether objects and signs rise to the level of picketing conduct, and not simply free speech.  For years, the National Labor Relations Board has ruled that rats and large banners are elements of free speech that do not rise to the level of “picketing” conduct that would be evidence of unlawful secondary boycott conduct.  In its recent memo, the General Counsel sought to use a case out of Chicago — involving, ironically, a large inflatable cat — to go after this precedent.

In the Advice Memorandum (which was dated December 20, 2018, but was released on May 14, 2019), the General Counsel’s Office directed Region 13 to issue a Complaint against the International Brotherhood of Electrical Workers Local 134, finding that the union violated the “secondary boycott” provisions of the National Labor Relations Act by erecting a large, stationary banner proclaiming a labor dispute with the general contractor as well as a large, inflatable cat clutching a construction worker by the neck, near the entrance of the construction site.

The general contractor was “neutral” as it did not employ electricians directly.  Rather, the “primary” employer was a subcontractor on the job site.  It was undisputed that the union posted agents to hold the banner and used the inflatable cat at the entrance to the construction site, with the aim of forcing the neutral employer to cease using its electrical subcontractor.

The Region was directed to use the case as a vehicle to urge the Board to reconsider its decisions in a trio of decisions that were issued during the Obama administration, which found similar conduct protected and not unlawful “picketing” of a neutral employer under the Act:

  • A union’s posting of agents holding large, stationary banners proclaiming “labor dispute” and “shame on [the employer” in front of neutral businesses (Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 NLRB 797 (2010));
  • A union’s use of a large, inflatable rat in front of a neutral employer was neither picketing nor otherwise coercive (Sheet Metal Workers Local 15 (Brandon Medical Center) (Brandon II), 356 NLRB 1290 (2011)); and
  • Erecting banners at 19 different neutral employers’ premises proclaiming “shame” on them (Carpenters Southwest Regional Councils Locals 184 & 1498 (New Star), 356 NLRB 613 (2011)).

After a lengthy review of the existing precedent, the Division of Advice concluded that the trio of cases struck the wrong balance between speech and picketing activity, and that the General Counsel believed the union’s “activity was tantamount to unlawful secondary picketing, and signal picketing that unlawfully induced or encouraged neutral employees to cease working.”  13-CC-225655 at 1, 14-17.  Alternatively, Advice urged the Region to argue that the conduct “at least constituted unlawfully coercive non-picketing conduct” in violation of the Act.  Id. at 1, 17-18.

Unfortunately, the cat will not actually catch the rat this time.  Since the Memorandum was initially distributed to the parties in late December, the parties settled the unfair labor practice charge.  As a result, this case will not serve as the test case to the Board the General Counsel is seeking.  However, this Memorandum clearly illustrates the General Counsel’s policy on this issue and how Regions likely will be required to interpret the Act and prosecute potential union conduct in similar circumstances.  Given the proliferation of inflatable rats, it may be only a matter of time until the Board gets its chance to review its position.

Employer’s Campaign Prediction That Employees Would Have To Join Union And Pay Dues As Condition Of Employment Not Coercive, NLRB Majority Rules

The NLRB currently is churning out cases and Advice Memoranda at a fairly regular pace.  We recently discussed NLRB decisions addressing information requests, handbook statements, and confidential informants.

An interesting area of NLRB case law concerns campaign statements,–statements made by employer representatives during an organizing campaign.  When there is an allegation of wrongdoing, the Board evaluates such employer statements on two levels:  whether they are unlawful (in which case they constitute an unfair labor practice) or “objectionable” in which case they do not necessarily violate the law, but are of such a nature that they had a tendency to interfere with employee free choice during the election.  Both types of statements can overturn an election win for an employer.  An unlawful statement must be remedied before an election is rerun, usually by a public notice posting.  An objectionable statement overturns the election and the rerun is held shortly thereafter; the remedy is the rerun election.

One type of objectionable statement is in the area of “misstatements of law.”  The allegation is that the employer’s statement of the law surrounding unionization was incorrect.  It is the NLRB’s job to evaluate whether an incorrect statement of the law was objectionable.

In Didlake, Inc., 367 NLRB No. 125 (May 10, 2019), the Board was faced with an employer’s incorrect statement of law in the form of a prediction about what would happen to the employee if the union were to win the election.  The employer provided janitorial services for an Army National Guard Readiness Center.  There were 20 employees, approximately 15 of whom were severely disabled.

Employer Makes Pitch About Employment Being Conditioned on Union Membership and Dues Payment

During the course of the election, the employer’s Vice President had a number of conversations with employees about the consequences of having a union.  A conversation which was recorded provided the example for the subsequent objection:

Vice President:  So if the Union wins, I want to let you know a few things that will probably happen, okay, because we have the same Union at the Pentagon, okay.

Employee:  Ok

Vice President:  First thing they will require you to do is join the Union.

Employee:  Yes.

Vice President:  And if you don’t, you will not be able to work here.  Have they told you that?

Employee:  No.

Vice President:  Okay, so if you don’t join, you can’t work here.  Part of that agreement, then, is we will take $37 a month out of your paycheck, and we will give it to the Union on your behalf.  They will require us to do that.  They will also take 5 cents an hour for every hour that you work, and we will pay that to them as well, okay?  So if they win, then we have what’s called a collective bargaining agreement.  The Union and [the Employer] will sit down and negotiate the terms and conditions of that contract.

Employee:  Yes.

Vice President:  And those terms and conditions are wages, benefits, work rules for the workplace, and those sorts of things, so all of that is an unknown.  It will have to be negotiated, okay?

Employee:  Okay.

Vice President:  Everything may just stay the same, they may go up, or they may go down.  It’s a gamble.  We don’t know where all that goes until we sit down and negotiate with the Union, so we want to make sure that you’re aware of it.  If they win, you have to join as a condition of your employment to be here, and you will be paying the union dues.  Those are three things that we know for sure.  All the other things will become negotiation.

Employee:  Okay.

The election was held and the union lost by a slim margin.  The union received 9 votes, the employer received 10 votes and there was 1 void ballot.  The union filed objections and the NLRB Region conducted a hearing.  While there were other objections, the main issue in the case was whether the exchange between the Vice President and the employees was objectionable.  The Regional Director ruled that the employer’s prediction as to the effects of unionization was a misstatement of the law and that the statement was objectionable.  The Regional Director ruled that the employer’s statement about “having” to join the union and pay dues was a misstatement of the law that was objectionable.  The Regional Director ordered a rerun election. The employer appealed this decision.  Under the new election regulations, the rerun election was held while the employer’s appeal was pending.  The union won the second election.

NLRB Majority Holds Statement is a Misrepresentation of Law but Harmless

An NLRB majority (Chairman Ring and Member Emanuel) reversed the Regional Director’s ruling and vacated the results of the second election.  The Board began by noting that the employer “misstated the law when they characterized union membership and the payment of dues as a ‘condition of employment’ if the Union won the election.”  Although not discussed in the Board’s decision, the employer’s statements constituted a misstatement of the law because union membership becomes a condition of employment through a union security clause which must be negotiated into a collective bargaining agreement.  It is possible that the parties do not agree to include a union security clause in the labor contract.

The Board then reviewed the law in this area: that “unless a party has acted in a ‘deceptive manner’ that renders employees unable to recognize campaign propaganda, the Board will not ‘probe into the truth or falsity of the parties’ campaign statements’ and ‘will not set elections aside on the basis of misleading campaign statements.'”  Midland Life Insurance Co., 263 NLRB at 133.

Applying this standard, the Board held that the conversations were held in a “straightforward manner” and no deception by the employer was alleged.  The Board held the employer’s “mere misrepresentations regarding the Union’s ability to compel membership or enforce the payment of dues do not rise to the level of objectionable conduct.”  The Board held that the Regional Director and dissenting Board member “did not give due weight both to the conditional nature of the Employer’s statements and the context in which they occurred.”  Thus, although the Vice President “predicted that employees would have to join the Union as a condition of their employment and would be paying the union dues, these comments were preceded by and implicitly based on [the Vice President’s] references to the Employer’s experience with the Union at a nearby facility.”

Dissent Sees Coercion In Statement

Member McFerran saw the employer’s statements about employees “having” to join the union and pay dues as tantamount to a threat of job loss.  McFerran interpreted the statement not only as misrepresentative of the law but coercive:

The Employer warned employees in no uncertain terms that union representation necessarily would result in union-membership and dues obligations that the Employer would have no choice but to enforce by discharging employees who wanted to refrain from joining the union and paying dues (even though they might well have wanted union representation).  That warning was not just a clear misstatement of a basic principle of modern labor law, it was a threat equating a vote for representation by the Union with the risk of job loss.


This is an interesting case because it demonstrates how the statements evaluated by the Board can be interpreted in vastly different ways.  The Board majority saw a misrepresentation but, in context, ruled that the employee likely was able to see the statement against the backdrop of bargaining:  the employer was talking from experience with the same union about the risks of bargaining and the potential outcome.  The Board majority might have ruled differently were it not for the employer’s statement about its experience with the same union at another location.  We do not know the history of that relationship but it is likely that the parties had a valid union security clause in the contract and that it would be reasonable to assume that the union would seek the same thing at any newly organized location.

The NLRB has the difficult job of judging how employees might interpret statements from the employer.  As we have discussed previously, the outcome of a case like this very much depends on the make-up of the Board.  Employers wanting to avoid that kind of uncertainty would do well to just not make absolute statements in campaign context.  It’s better to preface a statement with, “I don’t have a crystal ball but . . .” than to talk about certain outcomes.

NLRB Office of the General Counsel Advises that Uber Drivers Are Not Statutory “Employees”

In an Advice Memorandum dated April 16, 2019, but released on May 14, 2019, the NLRB’s General Counsel staked out a position in one of the most contentious and influential questions in labor and employment law today: Whether or not Uber drivers ­– and by implication, potentially, other “gig economy” workers – are statutory employees under the National Labor Relations Act or independent contractors.

If the drivers are employees then they are protected under the NLRA and have the right to organize; independent contractors lack those rights.  Applying the Board’s recent analysis of the standard for determining independent contractor or employee status – which was discussed here – the Division of Advice concluded that drivers of UberX and UberBlack were bona fide independent contractors, not “employees.”  Advice directed each of the NLRB Regions to dismiss the pending charges against Uber.

Unlike a NLRB decision, an Advice Memorandum is not appealable, and it signifies that the NLRB General Counsel’s position on a particular issue.  In this case, the General Counsel’s signal is that the agency will not prosecute the pending NLRA charges on behalf of the Uber drivers.

Applying the SuperShuttle DFW Test to UberX and UberBlack Drivers

The Advice Memo focused largely on the NLRB’s recent SuperShuttle DFW decision to justify its position.  That case was factually similar to the situation involving Uber drivers, as it involved franchisees who operated shared-ride vans for SuperShuttle Dallas-Fort Worth, and the Board found that the franchise operators were not “employees”.  In that case, the Board reverted to the traditional common-law agency independent-contractor test, which applied ten or more factors in considering whether an employment relationship exists.  Significantly, under this qualitative analysis, a critical consideration is the worker’s “entrepreneurial opportunity” And whether the “position presents the opportunities and risks inherent in entrepreneurialism.”

This focus was vital to the Advice’s conclusion.  Advice concluded an Uber driver’s ability to work for competitors and maintain control over their vehicles, work schedules, and log-in locations, among other things, supported an independent contractor classification, particularly through the “prism of [the driver’s] entrepreneurial opportunity.”


The obvious impact of this Memo is that under the SuperShuttle DFW standard, the NLRB’s Regional Offices under the Trump Board will not prosecute unfair labor practices under the NLRA on behalf of Uber or similar ride-share drivers, or certify elections or bargaining units petitioned by them.  The implication is that other “gig economy” workers will be met with the same resistance from the Trump Board’s Office of the General Counsel and its Regional Offices, however, each independent contractor engagement may be factually distinct and should be independently evaluated under the SuperShuttle DFW test.

This Advice Memorandum presents a significant shift from the NLRB Division’s position under the previous administration in September 2016, when it advised that Postmates’ couriers were statutory employees, not independent contractors, under the NLRA.  As we noted in January, the NLRB may also decide to clarify the employee status of other groups of workers through rulemaking.

The issuance of the Advice Memorandum comes as other branches of government – federal and state – have recently waded into the employment status and rights of “gig economy” workers under federal and state wage-and-hour laws, to varying results.  For example, the United States Department of Labor recently opined that “gig economy” workers are not entitled to minimum wages or overtime under the Fair Labor Standards Act, while the California Supreme Court recently applied a more restrictive test for whether workers are independent contractors or employees under California law.  New York City also recently enacted a first-in-the-nation minimum wage law for for-hire drivers, which could foreshadow a playbook for advocates of “gig economy” workers to shift their focus to the state and local levels of government.

This is an area we have been monitoring from all angles of labor and employment law and seems ripe for continued activity.  So stay tuned!

NLRB: Employer’s Reasons For Policy Changes Kept Union’s Information Request Alive Even After Proposals Withdrawn

Information requests in the realm of labor relations are simple in theory but can be complicated in practice.  We have seen how the topics of information sought by a union can cause skirmishes, sometimes deliberately so.  We also have seen that it almost never is a good idea for a party to just deny a request for relevant information on the grounds of “confidentiality” or privacy concerns without first trying to reach an accommodation.

Many times, the reasons cited for a particular change become the battle ground with the union testing the rationale by a well placed information request.

This was the case in Stericycle, Inc., 367 NLRB No. 106 (March 11, 2019).  There, the employer is in the medical waste disposal business.  While many of its employees are non-union, it does have approximately 150 union represented employees working in two facilities.  The parties have a long-standing collective bargaining relationship, which resulted in successful negotiation of a new collective bargaining agreement.

After Bargaining Concludes, Employer Gives Notice That It Is Implementing Two New Policies, Citing Federal Law and Customer Requirements

Ratification was achieved on or about June 26, 2016.  Three days after the union notified the employer that the employees had ratified the new collective bargaining agreement, the employer sent the union a notice that it intended to implement two new policies, a “Code of Business Conduct and Ethics” and an “Anticorruption Policy” as of June 1.  The union immediately objected to the implementation of the policies, alleging bad faith in that the employer had not raised these issues during bargaining.

The employer responded that it had not unilaterally implemented the policies and that it merely had sent the notice to give the union an opportunity to bargain about them (this despite the fact the employer’s letter said it was going to implement the policies as of a date in the past).  The employer’s letter stated the policies “were not only a requirement under Federal Law as it relates to publicly traded companies, and when undertaking government work, but it is also a contractual requirement of the customers we serve.”

Union Continues To Press For Bargaining, Ultimately Asks For Information

The union continued in its quest to bargain over the policies.  In correspondence, the employer responded that if the union continued to resist implantation of the policies, the employer would advise customers of the union’s refusal and “this may have an impact on our ability to continue to service certain customers.”  The employer’s letter stated it would discuss the “effects” of any such impact on the bargaining with the union.

The union requested information related to the reasons cited by the employer and the new policies.  The union requested a list of all customers “including name, frequency of pick up and total volume in years 2014, 2015 and 2016” served by the bargaining unit and communications between the employer and the customers about the issues related to the new policies.  The request also sought the “federal, state or local government mandates” concerning the policies.

The employer responded that it was rescinding the policies obviating the need to bargain or furnish information.

The union continued to press the matter citing the employer’s statements about legal mandate, customer requirements, and the potential loss of business to the bargaining unit.  The employer continued to refuse to provide information.

The union filed charges.

ALJ Finds Section 8(a)(5) Violation Over Employer’s Refusal To Provide Information

After trial, the Administrative Law Judge had little problem finding that the information requested was relevant to bargaining, including the information about customers.  To this, the judge stated in his decision:

Even if I did not find the [customer] information presumptively relevant, I find that the Union nevertheless has clearly established its relevance.  [The union representative] credibly testified that the information requests, though initially prompted by Respondent’s announcement that it had implemented the two new polices, were not limited to responding to those policies, but rather, were intended to obtain important information related to [the employer’s] assertions that the absence of those policies could lead to loss of work at covered facilities.

Finding relevance to the information, the ALJ held that the employer’s failure to turn over the information constituted a violation of Section 8(a)(5) of the Act.

NLRB Agrees

The NLRB adopted the ALJ decision.  Two members (Chairman Ring and Member Emanuel) noted that “where a party clearly and unequivocally rescinds a bargaining proposal affecting the bargaining unit, a request for information regarding the proposal likely would be rendered moot, although this is not the case here because [the employer] continued to maintain that the absence of the policies could affect its ability to retain certain customers….”


This is an interesting case because it shows how the reasons given for not providing relevant information can come back to haunt the party asserting them.

Asserting a government mandate usually does not obviate the need to bargain if there is any discretion over how the mandate is to be implemented.  For example, a statutory raise to the minimum wage probably does not have any discretion: it must be implemented by a date certain.  There would be no obligation to bargain over such a government requirement.  But, most other governmental mandates are not so clearcut, and any discretion that exists as to  their implementation must be bargained.

We already know that simply denying a request for relevant information is likely to result in the NLRB easily finding a violation of the Act.  This case demonstrates how the reasons cited by the party denying the request can result in the obligation to supply information living well beyond the life of the proposed change.

Finally, bargaining over a successor contract, reaching agreement, and then rolling out a change to a term or condition of employment shortly thereafter is going to raise eyebrows of the union, if not its suspicions.

D.C. Circuit Weighs In On NLRB Test For Adjunct Faculty Unionization

Colleges and universities should take note of the Court of Appeals for the D.C. Circuit’s recent decision in University of Southern California v. National Labor Relations Board, Case No. 17-1149 (D.C. Cir. Mar. 12, 2019) addressing whether non-tenure track faculty at universities are “employees” under the National Labor Relations Act (“NLRA”), giving them the right to form a union, or whether they are “managers” and thus exempt from coverage under the NLRA.

In its decision, the D.C. Circuit largely upheld the standard set forth in Pacific Lutheran University, 361 NLRB 1404 (2014), a 2014 decision by the Obama-era National Labor Relations Board (“NLRB” or “Board”). The D.C. Circuit took issue, however, with how the Board applied Pacific Lutheran to the University of Southern California’s (“USC”) facts. Specifically, the court rejected the Board’s treatment of a faculty subgroup (e.g., adjuncts) not holding a majority of seats on a university committee (e.g., curriculum committee), so that the subgroup could not be considered “managers” (the so-called “subgroup majority status rule”). It found that such a strict rule was “a major problem” and remanded the case back to the now Republican-controlled NLRB for reconsideration.


The Supreme Court held in N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980) that the critical inquiry for analyzing whether university faculty are employees or managers under the NLRA is whether they exercise “effective control” over central university policies. In Pacific Lutheran, the Board established a “majority status rule” which measured such “effective control” based on an assessment of whether: (1) faculty were part of university committees; (2) the committees exercised decision-making power as to “central” university policies; (3) faculty constituted a majority of the committee’s membership; and (4) the committee’s recommendations “routinely” became “operative without independent review.”

The Pacific Lutheran Board also defined five key areas for evaluating whether university polices generated by faculty committees are considered “central,” three of which are considered “primary” and two of which are considered “secondary.” Primary decision-making areas include academic programs, enrollment management policies, and finances, while secondary areas include academic policies, and personnel policies and decisions.

NLRB Decision – University of Southern California

In 2016, the Regional Director in Los Angeles applied Pacific Lutheran’s “majority status rule” to a group of non-tenure track faculty at USC. The Regional Director did not analyze whether the faculty at large comprised a majority of university committees, but instead found that, specifically, non-tenure track faculty did not constitute such a majority—creating a “subgroup majority status rule” where the non-tenured subgroup had to make up a majority of the committees. Therefore, non-tenure track faculty were held to be “employees,” not “managers.” The Board adopted the Regional Director’s findings.

D.C. Circuit Decision – University of Southern California

On appeal, the D.C. Circuit affirmed the test articulated by the Board in Pacific Lutheran, but took issue with the Board’s application of the “majority status rule” to a “subgroup majority status rule.” The court stated that the Board erroneously “ignore[d] the possibility that faculty subgroups [e.g., tenured faculty and adjuncts], despite holding different status within the university, may share common interests and therefore effectively participate together” to exercise joint decision-making authority over university policies.

Thus, instead of focusing on whether subgroups, like adjuncts, make-up a strict majority of committees, the court held that the Board must engage in a two-step inquiry: (1) whether a faculty body as a whole exercises effective control based on the Pacific Lutheran factors; and (2) if so, whether the petitioning subgroup is included in that managerial faculty body. The court emphasized that the Board must treat the two steps of the Pacific Lutheran test separately, “and may not conflate them by asking whether the petitioning subgroup alone exercises effective control.”

The court remanded the case for the Board to reapply the D.C. Circuit’s modification of the Pacific Lutheran test to the non-tenure track faculty at issue in University of Southern California.


The Pacific Lutheran framework for determining the managerial status of university faculty lives on, but with the D.C. Circuit’s limiting gloss. The court’s rejection of the “subgroup majority rule” may make it more difficult for non-tenure track faculty to unionize because the pathway to “employee” status has been narrowed. But the full impact of the D.C. Circuit’s decision is yet unknown, as the Pacific Lutheran test could now be reconsidered by the Trump Board, which already has overturned several Obama-era decisions.

NLRB Rules Employer’s Handbook Statement That Benefit Available To “Non-Union Employees” Violates Act

During the last decade, a number of NLRB decisions faulted employers for written policies that were considered to be overbroad in violation of the National Labor Relations Act.  These rulings sprang largely from the NLRB’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board set forth a standard for evaluating the lawfulness of employer policies that did not directly implicate Section 7 rights.  The Board in Lutheran Heritage held it evaluated otherwise lawful language to determine if the “employees would reasonably interpret the language as restricting Section 7 rights.” Under Lutheran Heritage the Board was supposed to view the totality of the policy and not fragments.  This decision was a well-intended attempt to provide a framework for evaluating the language of employer policies.  In the years after its issuance, however, the Board took to something like a grand inquisition of all employer policies and often expanded the test by replacing the “would” with “could.”  The Board often examined fragments of a policy without regard to the full context. Allegations regarding handbooks became something of a cottage industry as violations were sought to gain leverage in labor disputes.  See here and here, for example.

The Lutheran Heritage standard was discarded by the Board last year.

Since late last year, very few NLRB decisions have issued involving handbooks.  The General Counsel has given a strong indication he is not pursuing an aggressive stance on employer policies. This is not surprising, of course.  The Board, currently anyways, clearly is not receptive to these kinds of violations.  A number of recently issued NLRB decisions note that the involved union withdrew handbook allegations in pending litigation.  This action was taken to avoid getting decisions from the current NLRB finding policies to be lawful.  That just would not do in today’s fractured labor relations climate.  When there is a change in the administration, and the make-up of the Board changes, there is little doubt the handbook-violation industry will ramp-up with a renewed fervor.

This is not to say that all handbook violation cases have gone away.  There are a variety of policies the Board would find in violation of the Act.  One such case is the Board’s recent decision in Constellation Brands, U.S. Operations, Inc., 367 NLRB No. 79 (January 31, 2019).  This case involved a number of allegations stemming from a hard fought union campaign.  In the original complaint there were a few allegations that the employer’s policies were overbroad in violation of the Act.  While the litigation was pending, the Board overruled  Lutheran Heritage, prompting the union and General Counsel to seek withdrawal of all but one of the handbook allegations.

Handbook Stated Benefit Given to Non-Union Employees

The remaining allegation concerned the language in the employer’s incentive plan which stated “All non-union full time and regular part-time employees of the Company are eligible for the incentive plan.”  The General Counsel alleged that this language violated Section 8(a)(1) of the Act because it expressly implicated Section 7 rights.

The Administrative Law Judge agreed, holding:

Board precedent is clear and unmistakable on this issue:  employer rules, statements, provisions or plans that afford benefits to employees contingent on their non-representational status violate Section 8(a)(1) of the Act. . . .Employers can avoid such coercive impression by simply using language that conveys the messages that wages and benefits of represented employees are ultimately subject to what the parties agree to in collective bargaining–without the inference that they are automatically disqualified.

On appeal, the Board affirmed with Member Emanuel observing that the language at issue “conveyed the message that employees choosing union representation are automatically ineligible for the plan.”


The unbridled scrutiny of employer policies is dormant.  For now.  This case is a reminder that that policy language discussing the applicability of benefits to”non-union” employees should be accompanied by a fuller explanation that employees represented by unions are subject to collective bargaining.

The case also is a reminder of how far the law under the National Labor Relations Act can swing in a short period of time.