Labor Relations Update

National Labor Relations Board Gets Back on the Joint-Employer See-Saw – Proposes Rulemaking to Return to “Browning-Ferris” Indirect Control Standard

By Michael Lebowich, Joshua Fox and Ethan Picone on Posted in NLRB

Coming on the heels of the Labor Day holiday, in a long anticipated move, the National Labor Relations (“NLRB”) Board issued a draft of a new proposed joint employer standard, scheduled to be published on September 7, 2022.  If ultimately implemented, the NLRB’s Notice of Proposed Rulemaking (“NPRM”) would nix the most recent joint employer standard (established in 2020) and return to the rule established by Browning-Ferris Industries of California, Inc., 362 NLRB 1599 (2015).  The joint employment framework is used to determine whether more than one entity controls the terms and conditions of employees, and thus, can be responsible under the NLRA to negotiate with a union, among other things.  Joint employer issues are most common between labor staffing firms and those using their services and franchise/franchisor relationships.

Since 2015, the NLRB has gone back-and-forth between two joint employment standards – one requiring direct control by both entities and the other focusing on potential “indirect” control. Democrat-majority Boards seek a broad rule which would include entities as joint employer that indirectly control or merely reserve the right to control the terms and conditions of employment of employees (2015 Browning Ferris decision); meanwhile, Republican-majority Boards have maintained the previously long-standing, traditional view that the joint employer framework must focus on whether a putative employer exercised “actual control” over the terms and conditions of employees (2018-2019 Rule).

Over just a few short years, both joint employment standards have received significant political backing from supporters and challenges by their respective detractors.  In 2017, the then-Republican-majority Board first attempted to reverse the Browning-Ferris rule via Board decision in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017).  However, the decision was later vacated after the NLRB Office of the Inspector General determined Board Member William Emmanuel’s participation in the Hy-Brand case violated an ethics rule (Exec. Order No. 13770(1)), because he had previously worked as a partner at Littler Mendelson, the law firm that represented an unsuccessful party in the Browning-Ferris litigation.

After Hy-Brand was vacated, the Trump Board looked to rulemaking to make their sought-after joint employer changes.  In 2018, the Trump Board proposed and later (in 2020) implemented a rule reversing the Board’s holding in Browning-Ferris and returning the joint employment framework to the previous, narrower standard.

In the September 6, 2022 NPRM, the Board majority asserted that the Browning-Ferris rule is most consistent with both Supreme Court precedent and over a century of common law joint employment decisions.  The NPRM announces: “[t]he proposed rule states that ‘two or more employers of the same particular employees are joint employers of those employees if the employers share or codetermine those matters governing employees’ essential terms and conditions of employment.’”  Such language, the Board asserts, captures the ultimate meaning of joint employment as “not whether the [putative joint employer] actually exercised control over the details of the work, but whether he had a right to exercise that control.”  NPRM, at 24 (citing treatises and several cases).  The Board insists the NPRM is consistent with the joint employment frameworks endorsed by several Courts of Appeal, including the Third Circuit and the D.C. Circuit.

Furthermore, citing “shortcomings” of the 2020 rule’s specific and exclusive list of essential terms and conditions of employment, the NPRM would also expand the definition of “essential terms and conditions of employment” by including workplace health and safety, assignments, and work rules and directions governing the manner, means, or methods of work performance.  Importantly, the new list is also specifically not exhaustive or limiting.

The two Republican Board members dissented to the issuance of the NPRM, stating that the NPRM is both legally incorrect and simply comes too soon after the 2020 rulemaking, which, among other things, could prevent the ability to provide meaningful guidance to employers regarding joint employment issues.

The Board seeks public comment on the NPRM for the next sixty (60) days — comments must be received by the NLRB on or before November 7, 2022, and reply comments must be received on or before November 21, 2022.  It is anticipated that the Board will move forward with the NPRM and implement it as a Final Rule shortly after the comment period expires.

Any such Final Rule will greatly expand the potential for labor litigation for employers that have relationships with staffing agencies, are part of a franchise model, or even use outside organizations to handle certain aspects of their employees’ working conditions, such as payroll companies.

As always, we will provide detailed analysis and guidance on the far-reaching effects of any issued Final Rule in the weeks to come.

Tags: Browning-Ferris, joint employer, NLRA, NLRB

NLRB Finds Restriction on Wearing Union Insignia In Workplace Unlawful

By Paul Salvatore, Joshua Fox and Alyssa M. Cook on Posted in NLRB

In a continuation of the current National Labor Relations Board’s (“NLRB” or “Board”) reversal of recent precedent established by the NLRB under the prior administration, on August 29, 2022, the Board held that Tesla, Inc.’s (“Tesla”) dress code violated the National Labor Relations Act (“NLRA”) because employees were prevented from wearing shirts that supported their union.

Factual Background

The policy at issue required all employees to wear “the assigned team wear,” which could be substituted by all black clothing if approved by the supervisor and “[a]lternative clothing must be mutilation free, work appropriate and pose no safety risks (no zippers, yoga pants, hoodies with hood up, etc.).”  During the Union’s organizing campaign in the spring off 2017, employees began wearing black cotton shirts that had a small logo with the Union’s campaign slogan – “Driving a Fair Future at Tesla” – with a logo of “UAW” on the back.

Prior to August 2017, employees regularly wore shirts that were not black or had logos and emblems unrelated to Tesla.  However, in August 2017, Tesla began to strictly enforce its team-wear policy to ensure compliance, which included incidents where certain employees were told if they did not change their shirts to comply with the dress code, they would be sent home.

During the hearing, Tesla asserted that the team-wear policy was intended to aid in the “visual management” of the employees and to lower the risk of employees’ clothing causing mutilations to the vehicles.  There was also testimony during the hearing from certain supervisors and employees, that they were not aware of black cotton shirts causing a mutilation to a vehicle.

Prior Precedent – Republic Aviation, Stabilus and Wal-Mart Stores, Inc.

Employees have the right under the NLRA to wear union insignia, and when an employer interferes with this right under Section 7 of the Act, the employer has the burden to show that its interference was justified by “special circumstances.”  See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801–803 & fn. 7 (1945). In Stabilus, Inc., the Board stated that “[a]n employer cannot avoid the ‘special circumstances’ test simply by requiring its employees to wear uniforms or other designated clothing, thereby precluding the wearing of clothing bearing union insignia.” 355 NLRB 836, 838 (2010).

However, in Wal-Mart Stores, Inc., 368 NLRB No. 146 (2019) (which we reported on here), a divided Board held that the “special circumstances” test did not apply where instead of an employer banning all union buttons and insignia, an employer allowed certain buttons, but limited the size and/or appearance of union buttons and insignia that employees can wear.  In those circumstances, the NLRB found that the Boeing test for facially-neutral rules applies instead.  The impact of this ruling was that it made the employer’s prohibition presumptively valid, shifting the burden on the NLRB GC to prove otherwise.

The Board’s rationale in Wal-Mart was that by only limiting union insignia – not banning them outright – the impact on employees’ Section 7 rights was relatively slight.  In that case, then Member (now Chairperson) McFerran dissented, and argued that the “special circumstances” test should remain in place for such a “core” right under the NLRA.

Majority Overturns Wal-Mart Stores, Inc. and Reaffirms Application of “Special Circumstances” Test

Chairperson McFerran, along with Members Prouty and Wilcox (with Members Kaplan and Ring dissenting), overturned Wal-Mart, and reaffirmed that the “special circumstances” test applies “[w]hen an employer interferes in any way with its employees’ right to display union insignia.”  The Majority explained that NLRB precedent since Republic Aviation has consistently applied the “special circumstances” test where employees were prohibited from wearing an article of clothing bearing union insignia based on a policy requiring employees to wear certain clothing.

The Majority’s rationale in deciding to overturn Wal-Mart and reject the dissenting opinion can be summarized by the following excerpt:

“The decision in Wal-Mart shares a fundamental defect with the standard proposed by our dissenting colleagues today: it effectively treats the display of union insignia more as a privilege to be granted by the employer on the terms it chooses, rather than as an essential Section 7 right that—pursuant to federal labor law— the employer is required to accommodate absent a showing of special circumstances.”

The Board found that Tesla did not meet the “special circumstances” test.  While a justification could be avoiding damage to the employer’s products, Tesla did not demonstrate a sufficient risk of vehicle mutilation.  The Board found that the policy was also not narrowly tailored to address the claimed interest in “maintaining visual management, even assuming special circumstances could be established on that basis.”

Takeaways

The standard is now clear – under the present configuration of the Board, at least – that when employers intend to institute and enforce workplace dress codes that interfere with employees’ ability to wear union insignia in the workplace, the burden shifts to the employer to demonstrate “special circumstances” to substantiate its policy.  The Tesla decision now removes a series of threshold questions that had to be answered as to whether the employer prohibition was a limit on the size/appearance of the insignia rather than a complete ban.

Pursuant to this well-established standard, the NLRB will closely scrutinize employers’ dress code policies – as it did in Tesla – if the policy interferes with employees’ exercise of their Section 7 rights to wear union insignia.  Whether a “special circumstance” exists may vary by industry, company, job title, employee, etc., based on the particular needs present in each situation.  Employers should now heed with caution and evaluate the facts of each situation in light of the policy has been previously enforced.

Tags: dress code, NLRA, NLRB, special circumstances, union insignia

D.C. Circuit Affirms NLRB Vulgar Graffiti Ruling

By Joshua Fox and Alyssa M. Cook on Posted in NLRB

On August 9, 2022, the U.S. Court of Appeals for the District of Columbia held that the National Labor Relations Board (“NLRB”) had adequate justification to rule that an aluminum manufacturer (“Constellium”) violated the National Labor Relations Act (“NLRA”) by firing a worker who made a vulgar protest against the employer by writing the words “whore board” on overtime sign-up sheets — signifying the employee’s distaste for the company’s overtime policy.  See Constellium Rolled Products Ravenswood, LLC v. NLRB, No. 21-1191 (D.C. Cir. 2022). The D.C. Circuit had previously remanded the NLRB’s 2018 ruling against Constellium, holding that the NLRB must consider potential conflicts between the NLRA and anti-discrimination laws in its analysis, as Constellium’s defense to the discharge was that the employee’s vulgar post was derogatory to women and violated the company’s anti-discrimination policy.

On remand, the NLRB ruled that the writing on the overtime sign-up sheets constituted protected activity under the NLRA in protest of Constellium’s overtime procedures, and that the employee was unlawfully fired as a result of engaging in such Section 7-protected conduct.  As noted, Constellium argued that enforcing anti-discrimination laws and company policies motivated its decision to fire the employee for using gender-based profanity. The NLRB was not persuaded by this argument, finding that the underlying factual record indicated that Constellium otherwise tolerated extensive vulgarity, profanity, and graffiti in the workplace.

The D.C. Court of Appeals affirmed the NLRB’s decision, holding that Constellium’s failure to previously enforce behavioral standards against vulgar language was “fatal” to its defense that it fired the employee for his profanity, rather than in response to his protected activity.

As this recent decision by the D.C. Court of Appeals demonstrates, employers should be mindful of how they interpret and apply their own conduct policies and endeavor to consistently enforce them.  Employers should be mindful of the potential tension between employees’ protected rights under federal, state and local anti-discrimination laws and the NLRA.  The failure to consistently enforce policies and practices may result in the NLRB viewing an attempt to belatedly do so when an employee has engaged in Section 7-protected activity under the NLRA as pretextual.

Tags: Constellium, D.C. Circuit, discrimination, manufacturer, NLRA, NLRB, overtime, protest, Section 7, vulgar

NLRB Signals New Push for Consequential Damages Is Intended to Make Employers Whole, Too

By Paul Salvatore, Joshua Fox and Elizabeth Dailey on Posted in NLRB

As we previously reported, National Labor Relations Board (“NLRB” or “Board”) General Counsel Jennifer Abruzzo is committed to expanding the remedies utilized by the Board to make employees harmed by an employer’s unfair labor practice whole. As part of this commitment, GC Abruzzo has encouraged Regional Offices to consider consequential damages as a possible make-whole remedy to cover the costs of downstream economic losses experienced by workers as a result of an unfair labor practice. As such, the General Counsel’s Office has moved forward with seeking consequential damages as part of negotiated settlement agreements.

With respect to one such settlement agreement, the United Mine Workers of America (“UMWA”) announced last week that it will challenge the NLRB’s $13.3 million damages estimate that the union may be required to pay an Alabama coal company pursuant to an agreement intended to resolve several strike-related unfair labor practice charges. As this case illustrates, the Board’s consequential damages initiative is not limited to remedying damages caused by an employer’s unfair labor practice—this remedy can also be implemented against a union for damages caused to an employer.

Background

UMWA-represented mine workers at the employer coal company have been on strike for over a year in protest against what the workers deem to be unsatisfactory negotiations for higher wages and improved benefits. Over the course of the year-long strike, the workers have picketed outside of the employer’s Alabama coal mines and offices. During this time, UMWA and the employer have filed a number of unfair labor practice charges against each other, including charges alleging that UMWA has engaged in strike misconduct by placing devices like jackrocks in the roads leading into and out of the employer’s facilities, blocking the ingress and egress to the mines, threatening security guards at the employer’s facilities, and engaging in vandalism of the employer’s and replacement worker’s property at the employer’s worksite.

The UMWA, the employer, and General Counsel’s Office negotiated a formal settlement agreement to resolve the strike misconduct ULPs, which the Board approved in June 2022. As stipulated in the settlement agreement, the NLRB Regional Office later issued calculations for the damages UMWA owed to the employer and to the individuals injured by the alleged strike misconduct, totaling over $13 million. Part of the NLRB’s calculations included consequential damages for economic losses suffered by the employer, including the costs incurred by the employer to increase security at its facilities as well as the lost revenues to the employer for the unmined coal.

In response to the Regional Office’s multi-million dollar projection, the UMWA announced in the first week of August that it would challenge the Board’s damages calculations. While the Regional Office has said that its cost assessments are ongoing, assuming the UMWA continues to object to the Regional Office’s final damages determination, the parties may litigate the issue of appropriate damages before an administrative law judge.

Takeaways

Although GC Abruzzo’s pronouncements concerning consequential damages have centered on her goal of improving the make-whole remedies available to employees harmed by an employer’s unfair labor practice, this settlement agreement orchestrated by the General Counsel’s Office between the UMWA and the coal company indicate that the remedy of consequential damages is intended to make employers whole, too.

Moreover, the Board’s consequential damages calculations under the negotiated formal settlement agreement illustrate the potentially extreme and costly ramifications of awarding consequential damages. The Board included both direct and indirect economic losses in its calculations, ranging from damages from acts of vandalism to the costs of needing to beef up security at the worksite to the costs associated with lost revenues. This case suggests that the Board is prepared to take an exceptionally broad approach to identifying and remedying downstream economic losses, both to the benefit and detriment of employers and unions alike. As always, we will keep you apprised of the latest updates from the NLRB.

Case Update: Union Extortion Claims Get Another Chance after Third Circuit Remand

By Paul Salvatore, Joshua Fox and Morgan Peterson on Posted in NLRB

As promised (see prior post here), we are providing an update on the Third Circuit’s decision in Care One Management LLC et al. v. United Healthcare Workers East, et al.  As we addressed at the time, this cased involved allegations of union extortion against various nursing homes and assisted-living facilities across the Northeast as part of a corporate “campaign” against the facilities.  The underlying facts of the case are addressed in greater detail in our original post, but the facilities sued the union, alleging the labor organization violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”) based on its conduct.

In December 2021, the Third Circuit affirmed the trial court’s grant of summary judgment in favor of the union defendants and dismissed the case, finding the unions’ conduct did not rise to the level of extortion required for a civil claim under RICO.  Instead of petitioning the Supreme Court to review the Third Circuit’s decision, the facilities requested a panel re-hearing.

Last week, the Third Circuit issued a revised decision after reconsidering the matter.  This time, the Third Circuit ruled in favor of the facilities, concluding that a reasonable jury could find the unions authorized or ratified the alleged extortionate acts of its members, and remanded the case back to the District Court for further proceedings.

The Third Circuit also agreed with the facilities’ argument that the required standard of proof for the unions’ liability for its members’ actions is found in section six of the Norris-LaGuardia Act of 1932, rather than the less stringent standard of proof in the Labor Management Relations Act (the “LMRA”) that was originally applied by the trial court (and originally affirmed by the Third Circuit).  Section 6 of the Norris-LaGuardia Act requires “clear, unequivocal, and convincing proof” that a union participated in, authorized, or ratified the actions of its members, rather than the “preponderance of evidence” standard of proof generally required by the LMRA.

Now the question of the unions’ liability will likely be up to a jury to decide as this case is set to return to the trial court. We will continue to monitor this case and provide updates as it proceeds to trial.

NLRB Upholds “Successor Bar Doctrine,” Citing Labor Market Volatility

By Joshua Fox, Paul Salvatore and Dixie Morrison on Posted in NLRB

On June 28, 2022, the National Labor Relations Board (“NLRB”) voted to uphold the so-called “successor bar doctrine” in Hospital Menonita de Guyama, Inc. This doctrine provides incumbent unions with an irrebuttable presumption of majority support for at least six months after a change in employer ownership. Incumbent unions enjoy this irrebuttable presumption even if, as in Hospital Menonita, the employer claims it can provide objective evidence that the union has lost majority support.

The majority opinion cited the increasing volume of mergers and acquisitions in the contemporary economic landscape as supporting the successor bar doctrine, finding that failing to retain incumbent unions in the wake of increasingly frequent changes in company ownership would increase volatility and litigation in the labor market.

The dissenting opinion proposed that the NLRB return to the pre-2011 approach to changes in company ownership, in which the incumbent union had only a rebuttable presumption of majority support. The dissent also disagreed with the majority’s assertion that the successor bar would reduce labor volatility, arguing instead that forcing employees who no longer support a union to remain represented by that union would result in more, not less, instability in labor relations.

Takeaways

The successor bar doctrine is hardly a bedrock principle of labor law but rather an area where the NLRB has gone back and forth on the rebuttable vs. irrebuttable presumption issue over the years. Despite this lack of stability, employers who acquire companies with a represented workforce should take care for the first six months post-acquisition to deal with any incumbent union as if it had proof of majority support.

Tags: NLRA, NLRB, Successor Bar

NLRB Pursues 10(j) Injunction and Bargaining Order Against Starbucks Based on Conduct In Union Organizing Campaign

By Steven Porzio and Melissa C. Felcher on Posted in NLRB

On June 21, 2022, the National Labor Relations Board (“NLRB”) issued a press release indicating that the Regional Director of Region 3 requested injunctive relief from a United States District Court on behalf of seven former Starbucks employees in Buffalo, New York after the employees were allegedly fired for engaging in unionizing activities. This petition comes on the heels of an initiative issued by the General Counsel (“GC”) of the National Labor Relations Board (“NLRB”), Jennifer Abruzzo, in February of 2022, which we previously discussed here, to increase the use of injunctive relief under Section 10(j) of the National Labor Relations Act (“NLRA”) during organizing campaigns.

According to the Region 3 Regional Director, Starbucks engaged in an antiunion campaign after learning about organizing efforts among employees and allegedly terminated seven employees involved in the union’s campaign. The Regional Director argued that the 10(j) injunction would allow these employees to return to work while the parties resolved organization efforts. In addition to the 10(j) injunction, the Regional Director also requested a Gissel bargaining order for the Buffalo employees and a broad nationwide cease-and-desist order that would be applicable to all Starbucks facilities in the United States. A Gissel bargaining order would essentially force Starbucks to bargain with the union instead of conducting a rerun election. The Regional Director claimed that such order would be warranted since “traditional Board remedies will be unable to restore ‘laboratory conditions’ to enable the NLRB to conduct a free and fair rerun election.”

These extraordinary remedies sought by the Region 3 Regional Director are proof that GC Abruzzo’s initiatives and advice memorandums are being fully embraced by Regional Directors around the country. With union representation petitions up by 57% in the first half of fiscal year 2022 (as we previously discussed here), we can expect to see an increase of Regional Directors seeking 10(j) injunctions and bargaining orders based on the spike in new unionization efforts.

We will continue to monitor these developments and will keep you informed as to any new updates in this developing story.

NLRB Releases Spring Rulemaking Agenda Forecasting Changes To Joint Employer Standard and Representation Election Procedures

By Steven Porzio, Joshua Fox and Megan Childs on Posted in NLRB

On June 21, 2022, the National Labor Relations Board (“NLRB”) released its rulemaking agenda for Spring 2022, indicating the Board is considering revisions to two significant and tumultuous topics pursuant to the rulemaking process:  (1) the joint-employer standard under the National Labor Relations Act (“NLRA”), and (2) representation procedures, including those relating to blocking charges, voluntary recognition and bargaining relationships in the construction industry.

Joint Employer Status under the NLRA

As foreshadowed by the Board when it announced its regulatory agenda in December 2021 (discussed here), the NLRB will engage in rulemaking on the “joint employer” standard under section 2(2) of the National Labor Relations Act, likely reverting to the standard that existed prior to the April 2020 rule.

As previously discussed (here, here, and here), the “joint employer” standard has fluctuated significantly over the past several years. This standard has important implications, often for contractors/subcontractor relationships, parents/subsidies, and the like, because joint employers have responsibilities to comply with the NLRA regarding another entity’s employees. For example, joint employers must participate in collective bargaining over their employees’ terms and conditions of employment, and may be jointly and severally liable for the other employer’s unfair labor practices.

The current standard for “joint-employer” status was established by the NLRB through its rulemaking authority in 2020, and is codified at 29 C.F.R. § 103.40.  Under the current standard, which has been in effect since April 27, 2020:

“An employer… may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment. To establish that an entity shares or codetermines the essential terms and conditions of another employer’s employees, the entity must possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment as would warrant finding that the entity meaningfully affects matters relating to the employment relationship with those employees.” (Emphasis added).

Further, “essential terms and conditions of employment” is specifically defined to include “wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.” This standard varies from the previous standard, under which affiliated companies would be considered “joint employers” where a company possessed the authority to control those employees’ terms and conditions of employment, even if the company did not actually exercise such authority. A summary fact sheet on the 2020 final rule is available here.

Since the current “joint-employer” standard was promulgated via rulemaking, it cannot be altered by a NLRB decision, but rather the Board must similarly revise the standard through rulemaking or simply rescind the April 2020 rule without replacement – in the latter scenario, the case law would immediately revert to the prior Browning-Ferris standard that prevailed prior to the April 2020 rule, and would once again, subject the joint-employer standard to potential alteration by some future Board decision or rule.

Representation Election Procedures

The Board will also consider revising the representation election procedures under 29 C.F.R. 103, with a “focus” on the April 1, 2020 amendments implemented by the Board. A helpful summary of the April 1 amendments is available in an NLRB-published Fact Sheet and we also reported on those amendments here.

The three major changes implemented by the April 1, 2020 amendments regarding union election and recognition procedures were as follows:

  1. Replacing the blocking charge policy to expedite the election by implementing vote-and-impound or vote-and-count. Per this rule, a party may not block an election from occurring merely by filing charges.  Despite a pending unfair labor practice charge, the election will proceed as scheduled, and the votes will either be impounded (i.e., not counted), or counted, depending on the nature of the alleged unfair labor practice.
  2. Reinstating Dana Corp., 351 NLRB 434 (2007), challenges to voluntary recognition, which provides that where an employer voluntarily recognizes a union pursuant to NLRA Section 9(a), it must post a notice to its employees reflecting the same, and employees may challenge such recognition if they petition for a secret-ballot election within 45 days thereafter. If no petition is filed during the 45-day notice period, the voluntary recognition bar would operate for a “reasonable period of time” thereafter.
  3. For construction industry employers, requiring evidence of majority-employee support for Section 9(a) recognition in addition to contractual language. Such evidence would be the same showing necessary for unions in non-construction industries to establish recognition.

It remains to be seen how the Board will revise these election procedures, including whether the April 1, 2020 amendments will be revised or rescinded altogether.

Next Steps:

To advance its agenda, the Board will likely issue a Notice of Proposed Rulemaking (“NPRM”), which opens the formal process for public comment on the proposed rules. The website for the Office of Information and Regulatory Affairs indicated that for each rule, the expected date for the NPRM is September 2022.  The Board may also elect to hold public hearings at that point.

NLRB Chairman McFerran commented that the Board “encourage[s] the public to take advantage of these opportunities to share their views, and [looks] forward to getting feedback on these important issues in the future.”

We will continue to monitor and report on developments with regard to these rulemaking priorities.

Tags: 9(a), blocking charge, construction industry, Dana Corp., joint employer, NLRA, NLRB, Representation Election, Rulemaking

NLRB Alters Timing Requirements for Electronic Notice Posting in Workplaces Impacted by COVID-19

By Joshua Fox and Dylan K. Tedford on Posted in NLRB

In a decision issued on June 2, the National Labor Relations Board modified the timing of its electronic notice-posting requirement in circumstances where an employer has not yet reopened its facility due to COVID-19, or where a substantial complement of employees has not yet returned to work on-site when the employer “may be communicating with its employees by ‘electronic means’” (e.g., internet, intranet, email, etc.).

Prior to this decision, the Board temporarily suspended its standard remedial requirement that an employer must post a notice to employees at the involved facility within 14 days after the employer is served with the decision of an unfair labor practice, notifying employees of the employer’s violation and advising employees of their rights under the Act.  For employers that were closed or where employees were not yet reporting to work, employers were not required to post physical notices or distribute electronic notices until 14 days after the involved facility reopened and “a substantial complement of employees ha[d] returned.”

Reasoning that “prompt posting of the notice by electronic means will best effectuate the purposes of the Act by providing employees with timely notice of the unfair labor practices and the steps the Respondent will take to remedy them” the Board has reverted to its previous standard requirement with respect to electronic notification.  Now, the employer should again electronically notify its employees “within 14 days after service [of the unfair labor practice decision] by the Region.”  In addition to electronic posting, the employer should also post physical notices within 14 days after the reopening and staffing of a “substantial complement of employees.”

As we discussed here, the Board has not further defined what constitutes “a substantial complement of employees” in this context.  That said, the substantial complement concept is frequently used by the NLRB as one of the factors determining whether a company is a “successor” employer under the Act.  Based on this standard, the Board likely will consider whether a majority of the job classifications are filled and the operation is engaged in substantially normal production.

Characterizing its decision as one that “simply removes an unnecessary delay” in communication with employees, the majority gave little deference to certain Board Members’ concerns that the combined notice-posting period will likely now extend beyond the current-standard 60 days for certain employers.  Notably, the Majority specifically stated its decision “makes notice posting for more than 60 days a standard remedy for a subset of employers, at least until the Board returns to its pre-pandemic notice-posting remedy.”

As always, we will keep you up to date on the latest developments in the post-COVID return to work landscape.

 

Tags: Electronic Notice Posting, NLRA, NLRB, unfair labor practice

General Counsel Abruzzo Looks to Overturn Board Precedent Again: This Time, Seeking to Broaden Union Access to Public Spaces

By Steven Porzio, Joshua Fox and Caroline Libby on Posted in NLRA, NLRB

In an Advice Memorandum released on May 25, 2022, NLRB General Counsel Jennifer Abruzzo laid out a blueprint for changes she’d like made to Board precedent concerning union representatives’ access to employer property.  At issue is a pair of 2019 rulings by the NLRB in UPMC, 368 NLRB No. 2 (2019) and Kroger Ltd. P’ship, 368 NLRB No. 64 (2019), which together provided employers with greater latitude to bar union representatives from accessing public spaces within the employer’s facilities and grounds.

While an Advice Memorandum does not constitute a change in the law, it certainly gives a clear indication of how the current General Counsel will advise the Regions in deciding whether and how to prosecute future cases.  This most recent GC memo makes good on initiatives she articulated last year (previously discussed here).  The issue of union access to employer facilities was specifically foreshadowed as a topic for reassessment in the General Counsel’s “Mandatory Submissions to Advice GC Memorandum 21-04,” released on August 12, 2021.

Background – LT Transportation, Case 05-CA-281089

This Advice Memorandum is the result of an issue raised in a recent case before the Board, LAZ Parking Mid Atlantic, LLC, d/b/a LT Transporation, Case 05-CA-281089.

There, the conduct at issue was that the company wrote a letter to the union that was trying to organize the company’s drivers, prohibiting the union’s representatives from going to stops along the shuttle bus routes to talk to the drivers.  The union argued that barring non-employee union agents from boarding the employer’s publicly-used shuttles violated Sections 8(a)(1) and (3) of the NLRA.

The union ultimately withdrew the charges after winning the election to represent the company’s shuttle bus drivers.  However, the closing of the case allowed GC Abruzzo to issue the Advice Memorandum and opine on the legality of the prohibition of the union’s access to public facilities.

The History of Non-Employee Union Access Cases Pre-2019

In 1956, the Supreme Court issued NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), which held that employers could exclude non-employee union representatives from an employer’s property unless one of two conditions are present:

  • Employees are otherwise inaccessible to the union; or
  • The employer has discriminated against the union by prohibiting it from using the employer’s facilities, but provides access to non-union groups.

After Babcock, the Board was faced with a number of fact-specific scenarios confronting the discrimination questions, including situations involving “public spaces” – i.e., spaces either contained within, or adjacent to yet part of, an employer’s private property, but which were open to the public.  The Board addressed whether an employer, by virtue of allowing the public to utilize a particular portion of its otherwise private property effectively discriminates when it excludes the union access to said property for purposes of engaging in otherwise protected, concerted activity.

Since Babcock, the Board held on numerous occasions that unions could access such public spaces, as long as organizers used them consistently with the public property’s intended use and were not disruptive to the employer.  Cases over the years involved public sidewalks adjacent to a store, public restaurants located in a portion of the employer’s department store, public cafeterias, and casinos’ bars and restaurants.

The Board’s 2019 Decisions in UPMC and Kroger

In UPMC, 368 NLRB No. 2 (2019), the Board held that the “public spaces” exception referenced above was inconsistent with Babcock.  In overruling the prior cases that outlined a “public spaces” exception, the Board announced that employers could eject union organizers or representatives from such “public spaces,” unless one of the two exceptions from Babcock were demonstrated:  a showing of inaccessibility or discrimination based on the use by non-union groups.

The Board also took the opportunity to further define discrimination under the Babcock standard. The Board stated that discrimination in union access cases exists where “by rule or practice a property owner permits similar activity in similar relevant circumstances.”  The focus, according to the Board, should be on the conduct of the non-employee organizers, rather than their identities.

In Kroger Ltd. P’ship, 368 NLRB No. 64 (2019), the Board found discrimination against non-employee organizers only where it can be found that other non-employees engage in “similar activity in similar relevant circumstances.”  According to the Board, this standard encompasses both the literal activity engaged in, but also the purpose of the activity, which could result in an employer lawfully banning union organizers from distributing union literation, while allowing non-employee access for other charitable, civic and commercial activities.

General Counsel Abruzzo’s May 25th Advice Memo

General Counsel Abruzzo’s Advice Memorandum makes three principal points:

  • The Employer’s conduct in LT Transportation violated the NLRA, even based on the current standard. According to GC Abruzzo, the Employer’s prohibition was unlawful because it focused not on the union organizers’ conduct, but on their identity, as she believed the organizers did not engage in any activity – e., discussing working conditions with the drivers – in which the general public did not engage.
  • UPMC was incorrectly decided and should be overruled. According to GC Abruzzo, UPMC is inconsistent with Supreme Court precedent from Babcock and its progeny, which the Board was not privileged to alter.  The Board, in UPMC, incorrectly likened the union organizers’ activities to sales people surreptitiously entering the employer’s property, which according to GC Abruzzo, “disregards Section 1 and Section 7 of the Act.”
  • Kroger should also be overruled. The “similar in nature” standard illustrated by the Board in Kroger, according to GC Abruzzo, permits “[s]ingling out union activity for negative treatment,” and, therefore, is inconsistent with the NLRA.

Takeaways

Although the precedent in UPMC and Kroger remain good law for the moment, this Advice Memorandum clearly signals the General Counsel’s intention to encourage Regions to issue a complaint in similar subsequent cases, with the goal of getting the Board to ultimately overrule those decisions.

As a result, given the current composition of the Board for the foreseeable future, it seems all but inevitable that UPMC and Kroger will be overturned, and the “public spaces” exception under Babcock that existed prior to 2019 will go back into effect.  If that occurs, then unions will (once again) be permitted to access public spaces on or adjacent to employer’s private property, as long as the union representatives use the spaces consistently with the public property’s intended use and were not disruptive to the employer.

 

Tags: ABRUZZO, access, Employer Property, General Counsel, NLRA, NLRB, Public spaces, solicitation, union access
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