Labor Relations Update

NLRB Rejects “Constructive Denial of Transfer” and “Threat” Theories of Unfair Labor Practice Liability

As we hurtle toward Labor Day, and the probable onslaught of decisions, and as NLRB Member Pearce’s tenure ends on August 27, the Board has been issuing a steady stream of cases.  Many of these appear to be garden variety type cases, with a smattering of cases now dismissing the theory of a class action waiver violation and some defaults.

Recently, the Board issued a pretty interesting case concerning an alleged threat to an employee, as well as a fairly novel theory where “constructive discharge” principles were applied to an alleged denial of a transfer between two jobs at an employer.

In Mercy Hospital, 366 NLRB No. 165 (August 20, 2018), a three member panel of the Board (Pearce, McFerran and Kaplan) addressed a number of allegations against a unionized medical center.  The Administrative Law Judge found numerous unfair labor practices, including that the employer had issued a threat to an employee and constructively denied the same employee a transfer to a different job.  On appeal, the Board reversed both of these findings.


The employer runs a medical center providing clinical and acute care health services.  The Certified Nursing Assistances (CNAs) are represented by a union.  One CNA “often expressed work-related concerns to her supervisors in team huddle meetings and by email.”  In October 2014, the CNA received a performance review that praised her work but also stated she needed to improve “communication with supervisors, her acceptance of direction and constructive criticism.”

A few months later, in May 2015, during a team huddle meeting the CNA asked about new work assignments in a forthcoming mother-baby birthing center.  A manager later approached the CNA and told her that she should ask supervision directly about new assignments and not ask them in the huddle meetings.

In late June 2015, the CNA received a “Level 1 conversation” regarding her attendance issues.  The Level 1 does not constitute official discipline, nor is it included in the employee’s personnel file.  It also cannot be used for further corrective action but lasts 6 months/  In October 2015, after the CNA continued to have attendance problems, this was elevated to a Level 2 conversation.

In October 2015, the CNA sought to transfer to a CNA position in the Intensive Care Unit (ICU).  Under the terms of the parties’ collective bargaining agreement, the CNA was entitled to the position.  The CNA had a routine “meet and greet” with the head of the ICU.  Per the parties’ bargaining agreement a transfer could not be denied but the meeting allows the department manager and employee the opportunity to get to know one another.  The ICU manager told the CNA the workload in the ICU was “significant” and that the employees often had to “hustle” and work as a team.  The ICU manager stated she felt the CNA’s attendance issues were a concern.  The ICU manager also stated that the CNA’s current supervisor told her that the CNA was “inappropriate, rude and disrespectful” and was not a “team player.”  The CNA was upset and defended herself claiming past absences were covered by FMLA.  The ICU manager stated that she would continue to monitor the CNA and “utilize corrective action should any attendance or behavior problems persist.”

The employee declined the transfer, and subsequently transferred to another position in medical center’s operating room.

After trial, the ALJ found a number of violations. One such violation was that the employer violated Section 8(a)(1) when its manager told the CNA in May 2015 that she should not raise questions about job bids in a group context.  The ALJ also found that the conversation between the ICU manager and the CNA was unlawful because it related to the CNA’s past protected activities.  Further, the ALJ found that the ICU manager’s statement that she would monitor the CNA’s attendance and work behavior constituted a constructive denial of transfer where the CNA was given a Hobson’s Choice to discontinue her protected activities or face discipline.

Did the Meet and Greet Reasonably Tend to Coerce the Employee in the Exercise of Her Section 7 Rights?

The ALJ found that the CNA’s conduct during the huddle meetings was protected concerted activity, including when she expressed work related concerns and when she asked about new work assignments.  The ALJ found the employer violated Section 8(a)(1) of the Act when the ICU manager told the CNA that her supervisor said the CNA was inappropriate and disrespectful and when the ICU manager informed the CNA her work would be monitored.

The Board majority (McFerran and Kaplan) reversed this finding.  The Board recited the relevant standard in evaluating statements as coercive:  “The relevant inquiry is an objective one:  whether the employer’s statements or actions would tend to coerce a reasonable employee and chill the exercise of the employee’s Section 7 rights.”  The Board then noted several reasons why this comment did not reasonably chill the CNA in exercise of her Section 7 rights.

First, there was no reason to believe the ICU manager had any knowledge of the protected activities of the CNA.  In this regard, the Board noted that the meet and greet where the alleged threat occurred was “4 or 5” months after the meeting where the CNA inquired about work assignments.  There was no evidence the ICU manager attended that prior meeting.  While the ALJ noted the CNA took an “active” role in raising work related concerns it was “difficult to infer that [the CNA’s current manager’s] broadly negative characterization of [the CNA’s] work performance” referred to the protected activity.

Second, the Board noted that a “reasonable employee in [the CNA’s position] would have recognized that there was ample reason unrelated to protected conduct for” a prospective manager to be concerned.  In this regard, the Board noted that for two years the CNA had been warned aobut “indulging in nonverbal expressions of impatience and displeasure at team huddle meetings, such as rolling her eyes, sitting with arms crossed and breathing heavily.”  The Board concluded that a reasonable employee in the CNA’s position would assume that the manager of the unit to which she intended to transfer would know of these issues.

The Board found it significant that the ICU manager said nothing about protected activities and that a reasonable manager would be concerned about the CNA’s performance.

Constructive Denial of a Transfer?  A Novel But Ultimately Unavailing Theory

The Board also reversed the ALJs finding that the CNA’s turning down the job based on the ICU manager’s remarks was an unfair labor practice.  The ALJ ruled that the ICU manager presented the CNA with a Hobson’s Choice of accepting the ICU position and facing discipline or declining the position “even though she was entitled to it as the most senior qualified applicant.”

The Board was careful to note that it was not deciding the viability of this theory (which means they didn’t think much of it) but concluded that the CNA was not presented with a Hobson’s choice.  The Board noted that under the theory of Hobson’s Choice constructive discharge “an employee’s voluntary quit will be considered a constructive discharge when an employer conditions an employee’s continued employment on the employee’s abandonment of his or her Section 7 rights and the employee quits rather than comply with the condition.”  Intercon I (Zercom), 333 NLRB 223, 223 fn. 4 (2001).  Under this theory there are two elements required to make out a violation of the Act:  conditioning continued employment on the abandonment of Section 7 rights, and a quit that results from the imposition of that condition.

The Board found that there was no evidence to support the first condition.  The Board reviewed the conversation in question and noted that the ICU managers stressed the workload was significant.  There was a natural transition to the CNA’s established attendance problems.  Finally, the managers noted the CNA had been counseled repeatedly for her behavior at work.  Further, the Board noted that under the Hobson’s Choice constructive discharge case the employee must be faced with a “clear and unequivocal choice” which simply was not present.

The ALJ had ruled that if the Hobson’s Choice theory failed there still would be a violation under the Board’s constructive discharge case law.  Under this case law, the standard is “First, the burdens on the employee must cause, and be intended to cause, a change in his [or her] working conditions so difficult or unpleasant as to force him [or her] to resign.  Second, it must be shown because of the employee’s union [or other protected concerted] activities.  Crystal Refining Co., 222 NLRB 1068, 1069 (1976).  Applying this standard, the Board said no violation could be found because the employer “imposed nothing on [the CNA].”  Rather, the employer merely gave the CNA a “realistic preview” of the challenges posed working in ICU, the significant workload in that unit, that employees working there have to “hustle”, and that the CNA would be expected to maintain a “certain standard of behavior and attendance.”

Member Pearce Dissents

Member Pearce dissented to the Board’s rulings on the threat and constructive denial of transfer.  In his opinion he stressed that “[the CNA] to the displeasure of management–was a vocal advocate concerning employees’ terms and conditions of employment.”  As to the threat, Member Pearce stated that a reasonable employee would find the ICU manager’s comments chilling of protected activity:  “Rather than simply describe the CNA job already awarded [the CNA], [the ICU manager] invoked [the current manager] (who had coerceivly prohibited [the CNA] from engaging in protected concerted activity] and repeated his comments that [the CNA] was inappropriate, rude, disrespectful and not a team player.”  Further, that the ICU manager would “closely monitor” the CNA’s behavior and “go right to discipline” essentially forced the CNA to decline the position to which she was entitled for fear of suffering adverse consequences for her protected activity.


This is an interesting case because of the thorough analysis of the alleged coercive statements against the facts.  In other cases, the NLRB has had a tendency, if not an outright habit, of conflating seemingly unrelated events with little or no analysis.  Thus, in the past, protected activity engaged in by an employee can often serve as a shield and a sword for all future employment actions.  In this case, the Board majority looked at the timing of the ICU manager’s comments in relation to the prior protected activity (and unfair labor practice) that occurred and found that the time elapsed did not support a finding that the comments related back.  The Board majority also looked at the circumstances of the prior protected activity and found little, if any, nexus between that and the ICU manager’s conversation.

The importance of thorough and timely documentation of the employee’s work issues helped the defense.  The employer had documented both the behavioral and attendance issues of the CNA, neither of which was challenged as unlawful.  The CNA’s rude behavior was part of a performance evaluation that praised the work of the employee but also noted, as with all good performance evaluations, that the employee had deficiencies she needed to correct.  It was logical that such deficiencies would be of concern to a new manager.

The theories of Hobson’s choice constructive discharge and constructive discharge were a stretch, if only because the CNA had not resigned and remained employed and even transferred to a different operating unit.  Constructive discharge cases are extremely hard to prove and stretching the theory to include a “denial of transfer” would make it even more difficult.

Concluding the 2016 Persuader Rule Changes “Exceeded Authority” of the LMRDA, DOL Rescinds Them

The Department of Labor fully rescinded the 2016 changes made to the Persuader Rules.  The DOL concluded that the 2016 rule changes “exceeded the authority of the Labor-Management Reporting and Disclosure Act (LMRDA)” because they “impinged on attorney-client privilege.  The action rescinding the rule was announced in a July 17, 2018 News Release .  In announcing the change back to the prior rule, Deputy Assistant Secretary Nathan Mehrens remarked, “By rescinding this Rule, the Department stands up for the rights of Americans to ask a question of their attorney without mandated disclosure to the government.”  This action is the conclusion of the DOL’s year-long effort to rescind the rule changes, which the agency started last year.

The 2016 rule changes never went into effect and had been enjoined by a federal district court almost immediately upon promulgation.

Arbitration Class Waivers, Past Practice (not established) and Skirmishing Over Information Requests All Part of Recent NLRB Action

Since December 2017, when the Board issued a number of decisions which restored precedent that had been changed in the last few years, (discussed here, here, here, and here), not much of note has been happening at the Board.  Indeed, there was not a full complement at the Board until April when Chairman Ring was confirmed.

Two upcoming events may see some additional activity at the NLRB.  First, Board Member Pearce’s term expires in a few weeks on August 27.  This will leave the Board with four members.  It is fair to assume a number of decisions may issue in the coming weeks as Pearce completes his term.  No word on a replacement for Pearce.  Second, the NLRB’s fiscal year ends on September 30, 2018, and the preceding days up to and including that date usually see numerous decisions issue as the Board attempts to maintain its productivity statistics.

In the meantime, the NLRB recently issued a number of decisions that fall in the category of “business as usual,” following existing precedent but with some interesting nuggets of information.

NLRB No Longer Pursues Class Action Waivers as Unlawful

Contrary to the vast majority of handbook cases, where the NLRB just finds a policy to be unlawful regardless of whether employees read it or if it was enforced, the Board’s banning of class action waivers had real consequences.   In May 2018, the Supreme Court ruled that there was no such violation of the NLRA.  Consistent with the Supreme Court’s ruling, the NLRB has started to dismiss existing cases where the Administrative Law Judge found a violation.  See, for example, Kellog Brown & Root LLC, 363 NLRB No. 153 (August 2, 2018).

Employer Violated the Act by Refusing to Provide Union with Names of Witnesses To Sexual Harassment

In American Medical Response West, 366 NLRB No. 146 (July 31, 2018), the Board found an employer violated Section 8(a)(5) of the Act by refusing to provide the names of witnesses it had interviewed in connection with a complaint of sexual harassment lodged against a bargaining unit member.  After an investigation, the employer discharged the accused employee.  The union requested information related to the employer’s investigation.  The employer provided redacted witness interview notes but refused to provide the names.  The union filed a charge and the ALJ concluded that the employer violated the Act.

On appeal, the NLRB noted that the provision of witness names has been the law for at least forty years, citing Transport of New Jersey, 233 NLRB 694-695 (1977).  What makes the case interesting, however, is that the employer had asserted a need to maintain confidentiality in the early stages of the investigation.  This assertion constituted the employer’s defense.  The NLRB rejected this defensem noting that the employer  had “presented no evidence or argument to the Board to explain why its confidentiality interests should prevail over the Union’s need for information.”  This conclusion was reached despite the employer having provided testimony that during the investigation the witnesses expressed concern of harassment or retaliation by the union.

The Board noted further that “even assuming the Respondent had demonstrated its confidentiality interests in protecting witness names outweighed the Union’s need for the information, it nonetheless violated” the Act by “failing to seek an accommodation.”

The content of information requests is rarely the issue and that is what makes an outright refusal to provide relevant information nearly indefensible.  Of the few defenses that do exist, an employer cannot simply raise the defense and not provide the information.  The employer can avoid liability by working to reach an accommodation with the union.

A Past Practice Must be Supported By Evidence Before the Board Will Enforce it.

One of the more misunderstood concepts in labor law is “past practice.” A true past practice is something that is essentially an implicit agreement between the union and the employer on how certain things are done.  Changing a past practice without bargaining with the union violates the Act.  The NLRB recently rejected an assertion that past practice can be based on the perception of the union even when such belief is supported  by an errant employer statement.

In Consolidated Communications Holdings, Inc., 366 NLRB No. 152 (August 3, 2018), the Board was confronted with a situation where the union claimed a past practice concerning how health care premiums were calculated was violated when the employer did not reduce premiums.  In the parties’ successive collective bargaining agreements, there was provision for the amount the employees had to pay for healthcare, which was expressed in a percentage of total cost.  This is a common way of expressing healthcare in a collective bargaining agreement because it allows the amount employees pay to fluctuate based on the actual cost to the employer.  The agreements, however, were silent on how the premiums were calculated.

During bargaining for a successor agreement an employer representative stated that it looked like premiums for the next year would be going down because there were not many claims.  When the time came to adjust premiums, the rates were raised prompting the charge.  The union’s claim was that a practice existed where premium rates were based on the prior year’s claims.

The employer denied expressing that premiums would go down.  After evaluating credibility, the ALJ concluded that the statement had been made.  The ALJ noted, however, that such a statement did not necessarily establish that was the employer’s practice and evaluated the evidence.  The ALJ noted that while the General Counsel had several witnesses testify as to their belief that premiums were sent on a single factor, it was “highly likely that the GC’s witnesses are confusing a correlated factor (i.e., past year’s claims are loosely correlated with the next year’s premiums) with a single conclusive factor (i.e., past year’s claims always and solely determine next year’s premiums).”  Perhaps most important, the ALJ ruled that the GC’s position is compromised by the complete lack of any supporting documentary evidence.”  (emphasis in original).

In his analysis, the ALJ set forth the basic law regarding unilateral change and expressed how it applies in the past practice context as follows:

The Act bars employers from taking unilateral action on mandatory bargaining topics such as rates of pay, wages, hours of employment and other conditions of employment. . . .It is well-established that health benefits are mandatory bargaining topics. .  An employer’s regular and longstanding practices that are neither random nor intermittent become terms and conditions of employment even where such practices are not expressly set forth within a collective- bargaining agreement.

The ALJ noted that it was the burden of the party asserting the practice to establish that it existed and that in this case the General Counsel had failed to do so.  The Board adopted the decision on appeal.

One wonders how this case ever made it to trial, and then appeal, when it appears there was no actual evidence as to the practice.  Still, the decision is instructive in helping define the elusive term “past practice” and that even an employer’s statement that bears no relationship to reality cannot establish such a binding practice.

You’ve Got Mail: NLRB Requests Briefing on Standard for Employee Use of Employer Owned Electronic Communication Systems

In what could signify the beginning of the end for Purple Communications, Inc., 361 NLRB 1050 (2014) and guaranteed employee access to Employer computer systems for union organizing purposes, the NLRB issued a notice on August 1 inviting the filing of briefs on whether the Board should uphold, modify or overrule the decision.  Under Purple Communications (which we previously covered here), employees have a presumptive right to use their employer’s e-mail system to engage in protected activity under Section 7 of the NLRA on nonworking time, unless the employer can demonstrate circumstances allowing it to restrict such use.  Overturning Purple Communications could return the Board to the standard under Register Guard, 351 NLRB 1110 (2007), which permitted employers to impose Section 7-neutral restrictions on an employee’s non-work use of their e-mail systems, even if those restrictions ultimately limited the employee’s use of the employer’s e-mail for communications involving protected activity.

The NLRB issued the notice in response to a 2016 ALJ decision finding that an employer’s computer usage policy did not comply with Purple Communications standard, because it prohibited employees from using their work e-mail for any nonbusiness purpose.  Board Members Pearce (who was in the Purple Communications majority) and McFerran dissented from the decision to solicit briefs.  Both dissenting Members contended that issuing the notice was inappropriate in light of the pending appeal of Purple Communications before the Ninth Circuit and their view that there has been no change in workplace trends or evidence showing that Purple Communications has created significant challenges for employers, employees, unions or the Board.

Perhaps in recognition that workplace communication technology has clearly expanded beyond e-mail, the notice welcomes briefing on what standard the Board should apply to other methods of employee communication on employer-owned equipment (e.g., instant messages, text messages, and social media postings). While the Board has limited its holdings in the area of computer usage to employer e-mail systems, this notice may indicate a move by the Board to apply a consistent standard to all forms of workplace communication platforms.

Employee’s Failed Attempt To Secure Union Representation Sufficient Notice of Weingarten Request, Divided NLRB Rules

One area of labor relations that continues to vex practitioners is the scope of the so-called Weingarten rights.  NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).  Some 43 years after the Supreme Court set forth the right that represented employees are entitled to union representation when facing an interview that could lead to discipline, there still exist areas that are vaguely defined.  For instance, we saw that an employer’s search of an employee’s vehicle is not a “disciplinary interview.”  We also have seen have also seen that a fellow employee is not a “union representative for purposes of Weingarten.

What words must an employee utter to put the employer on notice that he or she wishes union representation?  A divided NLRB recently addressed this issue and ruled that an employee’s remarks that he had previously contacted the union about a scheduled interview was sufficient to constitute a request for a Weingarten representative.  In Circus Circus, Inc., 366 NLRB No. 110 (June 15, 2018), the NLRB was asked to evaluate whether an employee’s indirect statement about calling for union representation was sufficient to put the employer on notice that he wished to have a union representative at a disciplinary meeting.

The Employee Attempts but Fails to Reach His Union Representative

The facts of the case are fairly straightforward.  The employer required all employees to be fitted with respirators as part of an OSHA requirement.  An employee refused due to stated medical reasons and the employer started disciplinary proceedings.  The employer suspended the employee pending investigation.  The employer scheduled a “due process” meeting to discuss the issue and potentially issue discipline to the employee.  In advance of the meeting the employee called his union three times but did not hear back.  Upon entering the meeting, the employee discovered that no union representative was present and stated to the employer representatives, “I called the Union three times [and] nobody showed up, I’m here without representation.”  The employer continued with the meeting and the employee ultimately was discharged.

The employee filed NLRB charges over the discharge and included an allegation that his Weingarten rights had been violated.

After a trial the Administrative Law Judge concluded that the employee’s “statement constitutes a request for representation [because] [s]ubsumed in the statement is a reasonably understood request to have someone present at the meeting.”

The employer appealed.

Divided Board Concludes Employee’s Statement Was a Weingarten Request for Representation

On appeal, a two member majority (Pearce and McFerran) of the Board agreed with the Administrative Law Judge that the employee’s statement was tantamount to a request for representation noting:

Board law is clear that ‘[n]o magic or special words are required [to trigger a Weingarten request]…It is enough if the language used by the employee is reasonably calculated to apprise the [e]mployer that the employee is seeking such assistance.’  Houston Coca Cola Bottling Co., 265 NLRB 1488, 1497 (1982).

Chairman Ring dissented.  The Chairman noted that Weingarten rights arise only in situations “where the employee requests representation.”  The Chairman noted further:

As the majority’s discussion reveals, [the employee’s] efforts to secure a union representative were directed to the Union, not the Respondent.  To the latter, [the employee] said only that he had unsuccessfully tried to contact the union hall to obtain a representative and that he was attending the meeting without one.  He did not request an alternative representative, even though his shop steward worked right across the hallway.  Nor did he seek a delay so that a representative could be found.


This case is certainly open to debate and raises more questions than it answers.  For instance, why didn’t the union return the calls? Why did the employee not object to the continuation of the meeting?

On balance, if an employee mentions union representative at the beginning of a disciplinary interview but doesn’t expressly ask for one, it is probably best to clear up this issue before beginning the interview.  Such an inquiry could avoid litigation over this kind of issue.


NLRB General Counsel Issues Handbook on Handbook Rules

Following up on the NLRB’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), on June 6, NLRB General Counsel Peter Robb issued a new Guidance Memorandum (18-04) detailing how NLRB Regional Offices receiving claims of improper employment policies are to interpret employer workplace rules. As we reported this past December (here), in Boeing, the Board established a new (and much more employer-friendly) standard for the lawfulness of employee work rules. As discussed in detail below, the Memo gives examples of specific policies that are to be found lawful and directs Regional Offices to no longer interpret ambiguous rules against the drafter or generalized provisions as banning all activity that could conceivably be included within the rule.  Thus, Regional Offices will now look to whether a rule would be interpreted as prohibiting Section 7 activity, as opposed to whether it could conceivably be so interpreted.

In Boeing, the Board reassessed its standard for when the mere maintenance of a work rule violates Section 8(a)(1) of the NLRA. The Board established a new standard that focused on the balance between the rule’s negative impact on employees’ abilities to exercise their NLRA Section 7 rights, and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. Going forward, work rules are to be categorized in three categories: (1) rules that are generally lawful to maintain; (2) rules warranting individualized scrutiny; and (3) rules that are plainly unlawful to maintain. The General Counsel’s Memo places a number of commonly found workplace policies into these three groupings.

Category 1 Rules are generally lawful either because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the NLRA, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule. The examples provided in the Memo of the types of rules that fall into this category include:

  • Civility rules (such as “disparaging, or offensive language is prohibited”);
  • No-photography rules and no-recording rules;
  • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations;
  • Disruptive behavior rules (such as “creating a disturbance on company premises or creating discord with clients or fellow employees is prohibited”);
  • Rules protecting confidential, proprietary, and customer information or documents;
  • Rules against defamation or misrepresentation;
  • Rules against using employer logos or intellectual property;
  • Rules requiring authorization to speak for the company; and
  • Rules banning disloyalty, nepotism, or self-enrichment.

Category 2 Rules are not obviously lawful or unlawful, and must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications. General Counsel Robb identified the following examples of types of Category 2 Rules:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;
  • Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information, or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions);
  • Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding disparagement of employees);
  • Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark);
  • Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf);
  • Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work, or rules specifically banning participation in outside organizations); and
  • Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements).

Category 3 Rules are generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule. The examples provided in the Memo of the types of rules that fall into this category include:

  • Confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • Rules against joining outside organizations or voting on matters concerning the employer.

Prior to Boeing, employers had been far more hesitant to prohibit employee conduct when crafting handbook rules for fear that those rules could be construed as possibly infringinon employees’ Section 7 rights.  NLRB GC Robb’s Guidance Memorandum provides helpful clarity, with a detailed analysis and specific examples, as to how certain types of workplace rules would fall within the three-category analysis espoused by the Board in Boeing.  The Memorandum is particularly enlightening to employers as it foreshadows the manner in which a NLRB Regional Office would prosecute a potential unfair labor practice charge brought by an employee or union. Significantly, GC Robb expressly stated that Regions will not interpret ambiguities in rules against the drafter – this certainly benefits employers in any proceeding.  We expect this guidance to lead to fewer charges brought against employers in this arena, but only if employers heed the GC’s advice when drafting their employee handbooks.

NLRB Considers Rulemaking to Address Hotly-Contested Joint-Employer Standard

As we previously reported here, here and here, the NLRB’s “joint employer” standard has vacillated over the last several years, and currently remains in flux.  For historical reference, the NLRB expanded the scope of joint-employment in 2015 in Browning-Ferris, 362 NLRB No. 186 (2015), and then reverted to a more rigorous showing that had been required for years in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017).

Most recently, under extensive political pressure, the Board vacated Hy-Brand due to Member William Emanuel’s participation in the decision; Emanuel’s former firm, Littler Mendelson, represented one of the unsuccessful parties in Browning-Ferris and was under pressure by lawmakers to recuse himself.  Since then, with cases pending before the Board and courts involving potential joint-employer liability, parties on both sides of this issue have been on the edge of their seats awaiting guidance.

In a stark and unconventional departure from the Board’s normal practices—which is to overturn prior legal precedent through decision-making, rather than rulemaking—the NLRB announced that it is considering rulemaking to address the joint-employer standard.  On May 9, 2018, the Office of the Information and Regulatory Affairs published a Board submission, prepared at the request of Board Chairman John Ring, that the Board may be determining the joint-employer standard under the Act via rulemaking.  This is unusual because the Board has only engaged in rulemaking a few times in its 83-year history, one of which (the agency’s attempt to require all employers to post a notice of rights under the NLRA) ended badly.

An apparent benefit of pursuing change through the rulemaking process, rather than an adversary proceeding, is that there does not appear to be the same potential arguments that Member Emanuel or any other Board Member must recuse him or herself based on the identities of the interested parties.

In the NLRB press release, recently-confirmed Chairman Ring emphasized the importance of restoring clarity in determining joint-employer status, and also touted that proceeding down this path allows the Board to hear “all views” on this critical issue before reaching a decision.  Chairman Ring also promised that the Board would issue a proposed rule “as soon as possible” after hearing from all interested parties on the issue.

The Board has formally taken the necessary steps to begin the long public comment process associated with rulemaking here.  The regulatory agenda includes a proposal, but notably does not indicate the participation of Members Mark Gaston Pearce and Lauren McFerran, the Board’s two Democratic-members.

The next steps are as follows:  If and when the proposed rule receives support from a majority of the five-member Board (notably, neither Members Pearce or McFerran would be needed), the Board will then issue a Notice of Proposed Rulemaking, which will open the process for public comment to receive at least one round of written comments on the proposed rule.  The Board may also elect to hold public hearings, which may include cross-examination, and provide additional comment periods to obtain more information.

Although the next Board can reverse any decision made through this process, subsequent Boards will similarly have to trudge through the arduous and prolonged formalities of the rulemaking and notice-and-comment period to accomplish that objective.

The Board’s potential use of rulemaking here is quite an interesting reaction to the extensive political pressure placed by lawmakers on the Board’s members to recuse themselves from cases involving parties currently or formerly represented by their prior firms.

We will keep you posted as to how this unfolds in the closely-watched context of the joint-employer standard, as well as whether rulemaking evolves into the new modus operandi of the Trump Board in light of the political heat the Board members have recently faced.

Thorough Employer Investigation Helps Establish Employer’s “Honest Belief” of Employees’ Picket Line Misconduct

The Board is now operating at a full complement and is issuing decisions on a fairly regular basis.  Nothing earth shattering in terms of law (which is kind of a relief) but there are some interesting issues worth discussing.  A frequent topic of discussion here is the often blurry line between what constitutes “protected” versus “unprotected” employee conduct and how difficult it can be to defend claims that a discipline or termination violated the Act.  See some examples here, here and here.  When there is an ongoing labor dispute, such as a strike, it can be difficult to discipline or discharge an employee for misconduct that is bound up with the dispute.

In a recent NLRB decision, the employer’s thorough and complete investigation helped establish the lawfulness of its termination of some employees whose misconduct occurred in the midst of a strike.

In Kapstone Paper and Packaging Corporation, 366 NLRB No. 63 (April 20, 2018) the Board was confronted with a situation where negotiations over a new contract stalled and a strike occurred.  During the few days of the strike four employees were terminated for misconduct.  These terminations formed the basis of the charges alleging the employer discriminated against the employees in violation of Section 8(a)(3) of the Act.

The Employer’s Operation

Employer operates a paper and pulp mill in the state of Washington where approximately 1,000 unionized employees work.  The employer’s operation is “situated in a remote location, accessible by a single, one-mile road–Fiber Way.”  The road does not have any residential or commercial development and all employees drive their private vehicles to the plant.

Union Negotiations Break Down; a Strike Is Called

The parties were “embroiled” in contract negotiations which failed to produce an agreement.  The union threatened a strike, to which the employer responded by writing a letter to the union warning that “any employee who engages in serious strike misconduct (e.g., violence damage to property, threats of bodily harm) or violations of the law” would be subject to discipline or discharge.

The union eventually went out on strike.  The union held required training sessions for all employees which reinforced that union members were to “exhibit normal, respectful behavior on the picket line.”  Strikers were also given the union’s “Picket Line Dos and Don’ts” which further detailed appropriate picket line conduct.  These rules specifically stated, among other things, that strikers were not to “swarm” vehicles entering/exiting the plant, which was defined as standing collectively in front of or surround vehicles or obstruct vehicles’ entrances or exits.

Employee Kicks One Vehicle Causing Damage and Jumps on the Hood of Another

One striker who had attended training on dos and don’ts was on picket line duty with approximately 10-15 other strikers.  A pickup truck from one of the employer’s contractors entered the mill and the employee kicked the passenger side rear panel which appeared to cause damage.

In a separate incident occurring an hour later the employee and some of other picketers gathered in front of a vehicle leaving the mill.  One picketer stated, “there’s another one” a presumed reference to the fact the vehicle belonged to a contractor.  When the vehicle stopped the employee jumped on the hood and as he did so his picket sign made contact with the windshield.  When the picketers parted the vehicle accelerated throwing the picketing employee off.

Both incidents were caught on videotape.

The Employer Obtains an Injunction

The kicking incident and others formed the basis for the employer’s application for and grant of a state court injunction which stated, in part, that “No one will attempt to block or impede traffic entering or leaving the. . . mill site.”

Three Employees Block Exiting Semi-truck

After the injunction was issued, three picketers, all of whom had received the union’s training, decided to position themselves in such a manner so as to block larger trucks that needed to make a wide turn onto the access road from the mill gate.  Although the three employees were on the access road “right of way” they knew that by standing where trucks had to turn they would cause a “choke” point which would force the driver of the truck have to make a choice between hitting some parked cars or hitting the picketers.  One truck physically could not make the turn and could not back up so the picketers effectively blocked all ingress and egress to the mill.  Law enforcement was called and after an exchange the picketers finally moved.

The Employer Investigates the Incidents and Decides to Terminate the Four Employees

The employer’s security manager, who had conducted numerous investigations for the employer, conducted the investigation into these incidents.  The security manager reviewed all the videotape and spoke to witnesses. The security manager inspected the truck in the kicking incident and determined there was damage to the vehicle.  In the second truck incident (where the employee landed on the hood), the security manager observed the broken windshield but after review of all the evidence could not conclude when the windshield had been broken by the striker.

The security manager asked all four employees to provide written statements of their version of events.

The kicker/hood leaper wrote: “[the contractor] was honking his horn antagonizing picketers.  I believe I kicked at the vehicle while it was entering the contractor gate.”  As to the hood incident, he “jumped onto the hood of the vehicle because he was afraid of being hit.”

The other three employees in their written statements about the truck blockage stated the driver “cursed and yelled profanities” at the picketers while another blamed the driver’s poor driving:  “[she] cut the corner short in an attempt to get me and my fellow union brothers off the picket line…this driver shut down the semi, in my opinion to blow things out of proportion.”

The security manager assembled a report recommending discharge.  Here’s how the judge described the investigation and decision to discharge:

After [the manager] received the…discharge recommendation together with the investigative reports, photographs, the witnesses’ statements, the employees’ written statements, and the fact-finding notes, he conducted an independent review of the materials relative to the incidents involving [the four employees].  He also conferred with [the security manager] who conducted the fact-finding meetings and compiled the investigative reports.  He subsequently agreed with [the manager’s] assessment regarding the incidents. . .

Charges were filed and the NLRB took the matter to trial.

The ALJ, Board Dismiss Complaint

The ALJ stated legal test for discipline during a strike was one of discrimination.  The General Counsel has “the overall burden of proving discrimination” and must establish first that the employees were strikers and that the employer “took action against them for conduct associated with the strike.”  If the threshold case is established the “burden shifts to the employer to establish that it had an honest belief that the employees in question engaged in the conduct for which they were discharged.”  The employer’s burden, importantly, is “no more than that and it does not require it to prove that the strikers did in fact engage in misconduct.”

Applying this standard, the ALJ found that in both incidents the General Counsel established the threshold case.

As to the employee who kicked the truck the ALJ found the employee “intended to instill fear on the contractor’s part” not to return to the worksite during the strike.  This finding was bolstered by the fact the employee admitted the conduct in his written statement and “knew” that his conduct was prohibited because both the union and employer had issued warnings.   The judge found the conduct was “sufficiently egregious” to warrant his termination.

With respect to the three employees who blocked the truck the judge noted that the employees defended by stating the driver had “hurled insults and profanities” at them and they had a right to “stand their ground.”  The ALJ evaluated this defense and discredited the employees’ version.  The ALJ upheld the termination finding that even if the three employees were somehow provoked by the driver they would not be privileged to block the driveway and that by doing so they intended to intimidate the driver not to return while the stiker was ongoing.

On appeal, the Board upheld the dismissal of the complaint.


Labor disputes are chaotic and it can be very risky to discipline or discharge an employee for misconduct for the simple reason that the engaging in strike activities, such as picketing, is protected.  The decision is noteworthy for a couple of reasons.  First, the ALJ took pains to describe the legal standard as being one of “honest belief” that misconduct occurred rather than proving that the event actually occurred.  While this has been the legal standard for many years one cannot always be confident that standard will actually be applied.  It is much harder to prove that an employee actually engaged in certain misconduct. Indeed, the physical nature of the misconduct played a large role in this case (there was damage to a vehicle and the strikers standing in a certain position on the narrow access road in and out of the plant).  If the misconduct was verbal only the case likely would have turned out differently as the Board is willing to condone a great deal of verbal misconduct as part and parcel of a labor dispute.

Second, the thoroughness of the employer’s investigation was very helpful.  There are several elements of the employer’s investigation in this case which undoubtedly helped immensely in its defense, and of course, establishing its “honest belief” the discharged employees engaged in the misconduct.  These elements are:

  • Having an experienced investigator conduct the investigation.  Such a person knows the order of interviews, how to weigh evidence, etc.
  • Giving the accused the opportunity to provide his or her version in a written statement.  If the accused provides a statement the employer has the version to consider; if no statement is provided, the employer can at least say it tried to get the employee’s version but could not compel participation.  In this case, the employee who kicked the car admitted he did it.  The other employees claimed their actions were warranted by provocation which sounded like more of an excuse to engage in misconduct.  The fact due process is given is very important.
  • Discounting certain allegations based on the evidence.  In this case, the vehicle that had the employee jump on the hood had a broken windshield.  It would be easy to conclude that the employee’s conduct was responsible but the investigator could not be certain after watching the tapes and so appropriately did not attribute the act to the employee.
  • Layer of review.  This is very important.  After the investigation was completed, and a recommendation of termination was made, another manager independently reviewed all of the evidence and came to his own conclusion.  Independent review allows the employer to see if two managers see the same set of facts the same way.

The absence of any one of these elements certain could give rise to the charge that the investigation was “results oriented” and therefore a pretextual reason made up to hide the discriminatory reason for the discharge.

Gridlock Broken: Senate Confirms John Ring as Newest Member of NLRB

By a vote of 50 to 48  the U.S. Senate confirmed Republican John Ring as a Member of the National Labor Relations Board, giving the agency a full five member complement.  Member Ring, whose term expires December 16, 2022, takes the seat previously held by Chairman Miscimarra.

The addition of Member Ring means, of course, that the Board now consists of a 3-2 majority favoring employers and can issue decisions changing current case law, something it could not do with four members split evenly along party lines. During the brief three month period when the agency last had five members (September-December 2017), it issued many decisions overturning precedent (which, to be fair, had been overturned or “clarified” in the previous 8 years). During those 90 days the Board, among other cases, eliminated micro units, restored the ability of ALJs to accept settlements over the objection of the Charging Party or General Counsel, and set forth a new standard for evaluating the legality of handbook language.

More such precedent correction can be expected in the coming months.

Unicorn Sighting: NLRB Overturns ALJ Credibility Determination

As we have seen, there are few things that can be counted on in labor relations.   Oftentimes, several experts look at the same problem and come to vastly different conclusions (here, here and here are some examples).  What is (almost) guaranteed, however, is that the NLRB rarely disturbs the determinations made by an Administrative Law Judge of witness credibility made during testimony at trial.  This is mainly because the ALJ, as the sole fact finder, is the only person in a position to observe the demeanor of the witness and evaluate credibility.

In a fairly rare case, the NLRB recently refused to adopt an ALJ’s credibility determinations concluding that a judge’s determination that a charging party-witness was not credible was not something that could stand because it relied on “improper bases.”

In International Longshoremen’s Assn, Local 28, 366 NLRB No. 20 (February 20, 2018) the Charging Party was a female union member who claimed in a charge that her union discriminated against her in the referral of work and training opportunities for reasons related to her gender.

Charging Party Claims Sexual Harassment as Reason for Denial By Union of Work Opportunities.

The union operated hiring hall in which it dispatched union members to jobs.  The union also sponsored training to allow its members to gain skills to perform additional jobs.  Charging Party was a truck driver member of the union.

In the charge that initiated the case, the Charging Party stated that the union representative “unlawfully refused to allow . . .[Charging Party” to be placed on the certification list . . [and] refer …[Charging Party] to any jobs for unfair, arbitrary , and invidious considerations.”  As with all unfair labor practice charges, the Charging Party had to swear under penalty of perjury the allegation was correct.  After investigation, the General Counsel issued complaint and the matter went to trial.

The evidence established that for a period of years the Charging Party had received some work referrals through the union hall although on what amounted to a part-time basis.   Part of getting additional work had to do with being certified to perform additional jobs, the skills for which required training.  The Charging Party asserted that she had repeatedly requested the union to place her in training but the union denied these requests.  Charging Party stated that on 10 separate occasions during a 5 year period when she went to the union representative’s office to discuss training and she was subjected to physical assault of a sexual nature in what she described in her testimony as a “never-ending cycle” of grabbing and groping.

The alleged harasser, a union representative, testified that he did not engage in any sexual harassment. The union also demonstrated Charging Party had in fact been referred to jobs through the union hiring hall which appeared to contradict the statement in the charge that Charging Party had not been referred to “any” jobs.

Thus, the case turned credibility of these two opposing witnesses.  The ALJ recommended dismissal of the complaint after concluding Charging Party’s testimony was not credible.

ALJ Gives Three Reasons as to Why Charging Party’s Version was not Credible

In his decision, the judge noted first that Charging Party was a “highly uncooperative witness, who effortlessly answered virtually all of the General Counsel’s direct examination queries, but then responded to equally simple cross-examination questions with delays, pauses, additional questions, recollection issues, and reported confusion.”  Had this basis formed the entirety of the judgment’s assessment that Charging Party was not credible the ruling likely would have been upheld on appeal.

The judge’s second reason for deciding Charging Party was not credible was the “glaringly false statement in her ULP charge.”  This was a reference to the body of the charge which said Charging Party had not been referred to “any” jobs when, in fact, she had been sent to jobs.

The third reason the ALJ gave for the Charging Party’s lack of credibility was the “implausibility of several parts of her story.”  In this regard, the ALJ noted that it was unbelievable that the Charging Party, “a tough woman who performs stevedoring work…and previously drove a truck in Iraq, would have meekly allowed [the union representative] to harass her a whopping 10 times, without an utterance.”

After the complaint was dismissed, the General Counsel appealed on the grounds that the judge’s credibility determinations were “based on sex stereotypes and demonstrated bias.”

A three member panel of the Board (Kaplan, Pearce and Emmanuel) agreed and set aside the decision.  The Board remanded the case to the chief administrative law judge to assign to another judge to rehear the case.

Takeaway-It’s Still Hard To Attack A Credibility Determination

The burden to overturn a credibility determination is very high and that the Board’s general standard is not to disturb such determinations unless “a clear preponderance of the all the relevant evidence convinces [the Board] that they are incorrect.”  Usually, when judges discredit testimony it is because of the demeanor of the witness which is nearly impossible to challenge.

This is an unusual and interesting case because the ALJ gave much more detailed reasons for his denial of the claim which ultimately led to reversal.  In this case, the second and third reasons given by the judge were not typical.  For example, using the statement in the charge as a basis to conclude the charging party was lying would open up many charges to attack.   Such apparent conflicts between the charge allegation and the trial testimony are not usually given much weight for the simple reason that the literal words used on an unfair labor practice form, a document that does not require specificity and is often filled out without any expert assistance, would open up an entire new line of defense.  Charging Party’s statement in her charge that she did not get “any” work opportunities when she in fact had been referred work was more along the lines of an exaggeration rather than an outright lie.

The third reason, that Charging Party’s accounts of harassment were “implausible” was the obvious focus of the Board in its reversal.  The Board did not want to endorse a ruling that stated because an alleged victim of sexual harassment did not complain about each instance of harassment meant the allegations were “implausible.”

The case is an interesting insight into the determination of credibility, however.