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LABOR RELATIONS
UPDATE


NLRB ALTERS TIMING REQUIREMENTS FOR ELECTRONIC NOTICE POSTING IN WORKPLACES
IMPACTED BY COVID-19

By Joshua Fox and Dylan K. Tedford on June 3, 2022 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
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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 May 31, 2022 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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APPELLATE COURT REVERSES NLRB, HOLDING TWEET ABOUT “SALT MINES” NOT AN UNFAIR
LABOR PRACTICE

By Mark Theodore and Dixie Morrison on May 27, 2022 Posted in Uncategorized

Last week, the Third Circuit reversed a National Labor Relations Board (“NLRB”)
decision finding that FDRLST Media, publisher of online news magazine The
Federalist, unlawfully threatened its employees when its Executive Officer
tweeted about sending employees “to the salt mine” if they tried to form a
union.  In FDRLST Media, LLC v. NLRB, the Third Circuit found that a reasonable
employee would not view the tweet as threatening or otherwise interfering with
employees exercising their rights under the National Labor Relations Act
(“NLRA”).

The Executive Officer posted the tweet in question from his personal Twitter
account in response to news that staffers at a different media company had
walked off the job during union contract negotiations: “FYI @fdrlst first one of
you tries to unionize I swear I’ll send you back to the salt mine.”  Both an ALJ
and the NLRB found the tweet to be an objective threat against the employer’s
employees in violation of Section 8(a)(1) of the NLRA.

On appeal, the Third Circuit reversed, finding the tweet—which was obviously
intended to be a joke—to be harmless.  The court found these circumstances
important context, since the tweet regarded matters—specifically, labor
relations news—that The Federalist reports about on a regular basis. 
Additionally, the fact that there was no evidence of labor strife at The
Federalist at the time of the tweet further indicated that employees likely
would not read the tweet as an imminent threat.  Under longstanding NLRB
precedent, the determination of a statement’s threatening nature is an objective
test.  Despite this, the court found that the lack of evidence that any
Federalist employee actually felt threatened by the tweet also weighed against
the NLRB’s ruling.

The court also noted that the nature of Twitter makes it even less likely that a
reasonable employee would be threatened by a tweet.  By its structure (limiting
tweets to 280 characters), Twitter inherently engenders jokey, exaggerated, or
otherwise un-nuanced statements that are unlikely to be taken literally by a
reasonable person.  The court did, however, reject FDRLST Media’s argument that
the officer’s personal Twitter account should not be attributed to FDRLST Media,
noting that the officer not only is FDRLST Media’s executive officer but also
occasionally used his personal account for company business.

This is an unusual case with less than far-reaching implications.  Still, it is
an interesting analysis of the issues of standing, jurisdiction, and coercive
statements under the NLRA.  The Charging Party was not an employee of The
Federalist and had no direct or indirect ties to the employer.  Under the NLRA,
anyone can bring an unfair labor practice charge and does not need to have
“standing” like in virtually every other legal forum.  The outcome undoubtedly
would have been different if an employee had filed the charge.  The case is
instructive, however, because the court does an excellent job of articulating
the factors used by the NLRB for determining whether a statement uttered by an
employer is unlawful.  The NLRB has not indicated whether it will appeal the
Third Circuit’s opinion.

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NLRB GENERAL COUNSEL LOOKS TO PARTNER WITH THE FEDERAL MEDIATION AND
CONCILIATION SERVICE (FMCS) TO SUPPORT VOLUNTARY RECOGNITION AND COLLECTIVE
BARGAINING

By Steven Porzio and Melissa C. Felcher on April 27, 2022 Posted in NLRB

On April 27, 2022, NLRB General Counsel Jennifer Abruzzo released a memorandum
to all NLRB field offices detailing and encouraging an extensive partnership
with the Federal Mediation and Conciliation Service (“FMCS”).

The FMCS is an independent agency created to “preserve and promote
labor-management peace and cooperation.” In doing so, FMCS provides services to
assist with collective bargaining, including trainings on collaborative contract
negotiation, conflict resolution, and partnership building between management
and unions. Additionally, FMCS provides mediation services and, as of April 26,
2022, offers assistance in card counts if an employer has agreed to voluntarily
recognize a union where majority support for the union can be demonstrated via
signed employee cards. FMCS services are free of charge at the time of
certification, for first contract bargaining and if charges are filed alleging
bad faith bargaining.

General Counsel Abruzzo stated that this partnership takes a
“whole-of-government approach” and “builds on the strengths, expertise, and
resources of each Agency to advance national policy.” Regions are encouraged to
both remind parties of FMCS offerings and engage FMCS mediators when instituting
remedies in 8(a)(5) and 8(b)(3) bad faith bargaining cases to facilitate good
faith bargaining between parties. Additionally, General Counsel Abruzzo noted
that Regions should integrate FMCS services “more directly” by attaching
documents detailing FMCS services when sending notices or letters to parties
pertaining to certification or unfair labor practices. The attachments note the
offerings of FMCS and provide contact information for FMCS personnel so that
parties can talk to the agency directly.

This partnership will likely have an interesting effect on NLRB resolutions
going forward. Regions will likely try to incorporate FMCS services where
possible and parties may find themselves before FMCS mediators, or involved in
FMCS trainings, more so than before.

We will keep you updated on any new developments pertaining to this new
partnership.

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BREAKING: NLRB GENERAL COUNSEL SEEKS TO SCRAP 50 YEARS OF PRECEDENT AND REQUIRE
CARD CHECK RECOGNITION

By Joshua Fox, Michael Lebowich and Elizabeth Dailey on April 13, 2022 Posted in
Uncategorized

With Congress failing to make the organizing process easier for unions, the NLRB
General Counsel Jennifer Abruzzo is now asking the Board to require employers to
recognize unions without a secret ballot election.

As foreshadowed by her August 2021 memo on Mandatory Submissions to Advice, in a
brief filed in Cemex Construction Materials Pacific LLC, the Office of the NLRB
General Counsel argued that the Board should reinstate an antiquated Board
standard that was rejected more than 50 years (since 1969)—the Joy Silk
doctrine—that would require employers to recognize and bargain with a union if
it is presented with signed authorization cards from a majority of workers.

Under this old standard, the burden of proof rests with the employer to
demonstrate that it has a “good faith doubt” as to the union’s majority status
where the union presents evidence of a card majority and the employer refuses to
recognize the union. If the employer was unable to satisfy this “good faith
doubt” test, the Board would order the employer to recognize and bargain with
the union without a secret ballot election. According to the General Counsel,
the rationale for reverting to the Joy Silk doctrine is that the “Board’s
current remedial scheme has failed to deter unfair labor practices during union
organizing drives and provide for free and fair elections.” While the Board may
issue bargaining orders against employers whose unfair labor practices are so
severe and pervasive as to make a fair election unlikely or impossible (known as
a Gissel bargaining order), this is an extraordinary remedy that is only granted
in the rarest of circumstances.

As such, the General Counsel is requesting the Board return to its “good faith
doubt” test under Joy Silk, without requiring a showing of “substantial unfair
labor practices” to demonstrate the employer’s lack of good faith in questioning
a union’s card majority. Under the General Counsel’s proposed paradigm, an
employer may still ask a union to respond to its good faith concerns about the
authenticity of card signatures or the appropriate scope of the bargaining unit.
However, an employer “may not simply refuse to respond or object to
authorization cards as a method of demonstrating majority status.”

Highlighting the magnitude of the General Counsel’s position, the brief
explicitly explained its understanding of the Joy Silk card check doctrine
whereby

> [T]he Board may determine that a bargaining order should issue if the
> circumstances demonstrate a lack of good faith doubt even absent unfair labor
> practices, such as due to testimony or internal documentary evidence revealing
> the employer’s purpose at the time of its refusal to bargain, the legitimacy
> of the employer’s proffered reasons for refusing to bargain, or its failure to
> offer any explanation. This would include situations in which the employer’s
> reason for refusing to bargain is to gain time in order to persuade employees
> to change their minds, even using what would otherwise be lawful persuasion.

Takeaways

This is only the General Counsel seeking to change precedent.  However, if the
Board agrees with the General Counsel’s position and that action was upheld in
the courts (both doubtful at this time), employers would lose the right to
insist on a secret ballot election to ensure its employees have an opportunity
to exercise their statutory right to refrain from union representation if they
so choose. This would greatly facilitate the ease with which unions assert
representative status over employees and likely encourage unions to seek to
organize more workplaces.

As always, we will keep you up to date on the latest in this developing story.

Tags: card check, NLRA, NLRB, recognition
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UNION REPRESENTATION PETITIONS INCREASE BY ASTONISHING 57% IN THE FIRST HALF OF
FY 2022

By Steven Porzio and Melissa C. Felcher on April 7, 2022 Posted in Uncategorized

On April 6, 2022, the National Labor Relations Board (“NLRB” or the “Board”)
issued a press release recognizing the shockingly large surge in new union
organizing. Specifically, during the first half of Fiscal Year 2022 (October 1,
2021 to March 31, 2022), the NLRB reported that union representation petitions
increased by 57%.

Representation petitions are filed by employees and unions requesting that the
NLRB conduct an election to determine whether employees wish to be represented
by a union.

NLRB General Counsel Jennifer Abruzzo stated that “there is a surge in labor
activity nationwide, with workers organizing and filing petitions for more union
elections than they have in the last ten years.”

This rise in activity, however, is accompanied by “critical funding and staffing
shortages” for the NLRB, which makes addressing the large amount of union
petitions a difficult feat to conquer. Although the NLRB is set to receive a new
Congressional funding appropriation in Fiscal Year 2023, the NLRB claims this
may not fully address staffing needs since “more than three-quarters (77%) of
the NLRB’s budget goes directly to staffing costs.”

General Counsel Abruzzo noted the dire situation, stating that while the NLRB
remains committed to processing petitions and other matters that are presented
to the Board, “the NLRB needs a significant increase of funds to fully
effectuate the mission of the Agency.”

We will be sure to keep you updated with any new developments related to this
increase in union activity.

Tags: elections, NLRA, NLRB, unions
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NLRB GC SEEKS DRAMATIC CHANGE TO EMPLOYER’S RIGHT TO SPEAK TO EMPLOYEES ABOUT
UNIONIZATION AT WORK

By Michael Lebowich, Mark Theodore, Steven Porzio, Joshua Fox and Thomas B.
Fiascone on April 7, 2022 Posted in Uncategorized

For decades, employers had been free to gather employees to discuss – in a
non-coercive manner – the employer’s views on unionization, and had been free to
share with employees what employees’ rights were with respect to the same. 
Earlier today, the NLRB General Counsel issued a memorandum declaring her intent
to attempt to overturn this nearly 75 years of National Labor Relations Board
precedent regarding an employer’s ability to speak to employees.  In GC
Memorandum 22-04, issued on April 7, 2022, argues that mandatory “captive
audience” meetings and even simple one-on-one conversations during work are
unlawfully coercive.

The General Counsel’s initiative is the latest in a long line of new initiatives
dating back to last August, previously discussed in this space – however, this
particular change was not previously outlined by the GC in her most recent memo
(in August 2021) outlining her enforcement priorities.

The General Counsel’s Theory

The General Counsel refers to the current legality of such meetings as an
“anomaly” that is “contrary to the basic principles of labor law,” namely, in
that such meetings are contrary to the NLRA’s protection of “employees’ right to
listen as well as their right to refrain from listening to employer speech
concerning the exercise of their Section 7 rights.”

The General Counsel suggests that such meetings are often held under the threat
of discipline, express or implied, by virtue of an inherent pitting of
employees’ reliance on employers for their livelihoods against these rights.  In
other words, the General Counsel suggests that employees who skip such meetings
may fear retribution from their employer.  Accordingly, under the General
Counsel’s theory, such meetings fall outside the realm of
constitutionally-protected free speech because of an alleged unlawful coercive
effect.

Of course, Board law has been settled since 1948 on the legality of such
meetings, starting with the Board’s decision in Babcock & Wilcox Co., 77 NLRB
577 (1948).  There, the Board held that an employers’ compelling attendance at
such meetings does not violate the Act.

Going forward, the General Counsel suggests that employers must make clear that
employees’ attendance is truly voluntary, similar to a Johnnie’s Poultry warning
given to employees when an employer is investigating and preparing to defend
against an unfair labor practice charge.

What Comes Next?

As we have noted before, a General Counsel Memorandum does not change the law in
any respect.  However, it does signal that the General Counsel will be looking
to bring a “test” case to the NLRB for a ruling in the near future.  Indeed, the
General Counsel stated that she will ask the Board to consider its precedent in
this area in “appropriate cases,” and also stated that “a brief will be
submitted to the Board shortly” on the subject.  At that point, the Board will
decide whether to overturn over seventy years of precedent, with appeals likely
to follow.

Stay tuned.

Tags: GC, NLRA, NLRB
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THIRD CIRCUIT TAKES SUPREME COURT CUE AND REJECTS “IMPLIED” UNION CONTRACTS

By Mark Theodore, Joshua Fox and Rachel Kessler on April 4, 2022 Posted in
Uncategorized

On March 30, 2022, three judge panel of the Third Circuit Court of Appeals
unanimously overruled prior precedent allowing “implied” contracts to survive
the expiration of a written agreement. The instant panel held, instead, that
“implied” contract provisions that “have no durational limit of their own” are
“governed by the general durational clauses of the CBAs.”  Pittsburgh Mailers
Union Local 22, et al., v. PG Publishing Co. Inc., No. 21-1249 at *9 (3d Cir.
2022) overruling Luden’s Inc. v. Local Union No. 6 of the Bakery, Confectionery
& Tobacco Workers International Union 28 F. 3d 347 (3d Cir. 1994). In upholding
the District Court’s ruling granting summary judgment in favor of the Company,
the panel refused to require the Pittsburgh Post-Gazette (“Post-Gazette”) to
arbitrate a grievance with unions for its workers under their expired contract.

Factual and Procedural History

The Post-Gazette and the unions had a CBA which included an agreement to
arbitrate disputes on a case-by-case basis. Two months before the contract
expiration, the Company sent letters to the unions disavowing all contractual
obligations at the CBAs expiration, other than established wages, hour and terms
and condition of employment. While bargaining over a new contract, the
Post-Gazette refused to cover a yearly increase in the unions’ health care
costs, as it had under previous contracts. The unions claimed that the
Post-Gazette violated the expired CBA by failing to provide these health
benefits and sought to arbitrate the issue, citing Luden to support their claim
that the Post-Gazette should still honor the arbitration clause in the expired
contract.

After discovery, the unions and the Post-Gazette each moved for summary
judgment. The District Court granted Post-Gazette’s motion for summary judgment,
holding that the court could not compel the Company to arbitrate. The unions
appealed.

The Third Circuit’s Analysis

In 1994, the Circuit held in Luden’s that “an arbitration clause may survive the
expiration of termination of a CBA intact as a term of a new implied-in-fact CBA
unless (i) both parties in fact intend the term not to survive, or (ii) under
the totality of the circumstances either party to the lapsed CBA objectively
manifests to the other a particularized intent [], to disavow or repudiate that
term.” Luden’s, 28 F.3d at 364.

However, the Supreme Court issued two decisions in 2015 and 2018 undercutting
Luden. In both rulings, the Supreme Court held that CBAs do not “infer” lifetime
benefits unless the language explicitly says otherwise and that courts should
interpret CBAs “according to ordinary principles of contract law.” M&G Polymers
USA, LCC v. Tackett, 574 U.S. 427 (2015); CHN Industrial N.V. v. Reese, 138 S.
Ct. 761 (2018).

In its decision to overrule Luden, Judge Roth explained that in keeping with
these Supreme Court precedents, if a specific provision does not have its own
durational clause, the general durational clause of the CBA applies. Further,
the Panel reasoned that as a matter of contract law the arbitration provisions
had no durational limit, and as such, the obligation to arbitrate expired with
the CBA.

Takeaways

This decision—driven by clear rulings from the Supreme Court– is consistent with
those in the Eighth, Ninth and Seventh Circuits, indicating that the Circuits
are moving towards a general consensus regarding whether provisions in a CBA
survive the expiration of the CBA. Employers with operations in other circuits
should take note that certain provisions of the expired CBA – such as
arbitration provisions – may survive expiration,–until such circuits rule on the
issue in light of the Supreme Court precedent.

We will continue to monitor these developments and keep you informed as to any
updates in other circuits.

Tags: NLRA
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WE KNEW THIS WAS COMING: NLRB GENERAL COUNSEL RECOMMENDS ABANDONING WORKPLACE
RULE AND CONFIDENTIALITY RULE FRAMEWORKS

By Mark Theodore, Joshua Fox and Raymond Arroyo on March 10, 2022 Posted in
Uncategorized

As foreshadowed by the NLRB General Counsel’s August 2021 Advice Memorandum
(which we discussed here), the vacillating standard for the legality of employer
handbooks and policies and confidentiality requirements during open
employer-investigations have been ripe for reversal by the NLRB.

On March 7, 2022, in response to the NLRB’s January 6, 2022 notice and
invitation to file briefs, the NLRB General Counsel filed a post-hearing brief
in the case Stericycle, Inc., asking the Board to abandon its existing
frameworks for evaluating facially-neutral workplace rules (Boeing) and
confidentiality rules during open investigations (Apogee).

The Long Fight Over Common Workplace Rules

As we have previously discussed, the Board in Boeing overruled the Lutheran
Heritage standard, which required the Board to determine whether an employer’s
workplace rule would be “reasonably construed” to prohibit the exercise of
employees’ NLRA rights under Section 7 of the Act. Boeing Company, 365 NLRB No.
154 (2017); Lutheran Heritage 343 NLRB 646 (2004). The application of Lutheran
Heritage resulted in a mad dash to parse common workplace policies in the hunt
for potential violations of the National Labor Relations Act.

Instead, the Board, in Boeing, established three categories for evaluating the
lawfulness of workplace rules: (1) lawful rules, (2) rules that required
individualized scrutiny, and (3) unlawful rules.

The GC’s post-hearing brief recommended that the Board revert to the Lutheran
Heritage standard, describing the Boeing framework as “more complicated, less
predictable, and much less protective of employee rights.”

The brief also provided several recommendations as to how the Board may
strengthen the Lutheran Heritage standard:

 * The Board should not presume that employees are aware of their rights under
   the NLRA.
 * The Board should presume that employees will likely interpret a rule to be
   restrictive of their NLRA rights.
 * The Board should substitute the word “could” for “would” in the standard, and
   add the word “unlawfully” so the test states as follows: a rule is unlawful
   if “employees [c]ould reasonably construe the language to [unlawfully]
   prohibit Section 7 activity.”
   * The first change (could to would) makes the test more consistent with the
     Board’s application of Lutheran Heritage in subsequent cases and the
     Board’s general standard for employer statements, according to the NLRB GC.
   * The second change (adding unlawfully) would remove any doubt as to
     facially-neutral policies that represent lawful restrictions of Section 7
     activity, such as neutral rules limiting solicitation to non-working time.
 * The Board should permit rules that would ordinarily be considered restrictive
   in some situations as lawful, if the rule is (1) narrowly tailored to a
   special circumstance and (2) the employer’s interest in the rule outweighs
   its employees’ Section 7 rights.
 * The Board should provide a statement of employees’ statutory rights that
   employers could include in handbooks to create a presumption that other rules
   within the handbook do not prohibit those rights.

Evaluation of Confidentiality Rules During Open Investigations

In addition, the NLRB GC encouraged the Board to abandon its Apogee framework
when evaluating confidentiality rules during an open investigation. Apogee
Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019).

As we have previously discussed, the Board in Apogee overruled the Banner
Estrella Medical Center standard, which required an employer to determine, on a
case-by-case basis, whether its interests in preserving the integrity of an
investigation outweighed employees’ Section 7 rights. Banner Estrella Medical
Center, 362 NLRB 1108 (2015), enf. denied on other grounds 851 F.3d 35 (D.C.
Cir. 2017).

In Apogee, the Board held that an employer’s confidentiality restrictions for
information relating to workplace investigations are categorically lawful under
Boeing, where such rules explicitly apply for the duration of an investigation
only.

The GC’s brief recommended returning to the Banner Estrella Medical Center
standard, arguing that Apogee chills Section 7 rights during open investigations
asserting—without citation to any proof– “employees…reasonably fear discipline
based on a violation of said [confidentiality] rule.”

Two amicus briefs from the U.S. Chamber of Commerce and the HR Policy
Association and Retail Litigation Center have been filed.

Takeaways

It is hardly surprising that the Board is taking aim at these policies.  It has
become regular practice to overrule precedent from the last administration.  The
General Counsel’s recommendations in her post-hearing brief outline potential
paths that the NLRB could take in reshaping the standard for lawful handbook
policies and reverting to the prior standard regarding restrictions on
confidentiality during employer investigations.  In particular, the fickle
standard for handbook policies has made it difficult for an employer to issue
policies that it can reasonably expect will be long-lasting.  The practical
effect of overturning the current case law will be that employers will once
again be forced to defend policies in the absence of any other unlawful
behavior.  We expect the Board to address the standards regarding these issues
in this case—potentially adopting the GC’s view in at least some measure.  We
will follow up with future developments regarding the Board’s action in response
to the GC’s recommendations.

Stay tuned, we will keep you posted as developments occur.

 

Tags: Advice Memorandum, Boeing, confidentiality, General Counsel, handbook,
investigations, NLRA, NLRB
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NLRB GENERAL COUNSEL ANNOUNCES COMMITMENT TO INTER-AGENCY COORDINATION

By Steven Porzio, Joshua Fox and Timothy Kelly on February 11, 2022 Posted in
NLRB

On February 7, 2022, the White House Task Force on Worker Organizing and
Empowerment issued a report recommending, among other things, increased
coordination among agencies working on labor and employment matters.  In a
memorandum circulated on February 10, 2022, National Labor Relations Board
General Counsel Jennifer A. Abruzzo announced her agreement with that
recommendation and directed her officers to increase coordination with their
counterparts at other agencies, such as the Equal Employment Opportunity
Commission and the Department of Labor.  Abruzzo noted that while several of her
office’s existing memoranda lay out guidelines for coordination with other
agencies, those guidelines and related efforts need to be strengthened.

Among the areas regarding which greater collaboration is needed, Abruzzo
highlighted the already-announced interagency goal of combatting retaliation,
which we discussed in an earlier article here.  Abruzzo also emphasized the
importance of coordinating with the Internal Revenue Service, the Federal Trade
Commission, and the Department of Justice’s Antitrust Division with respect to
unfair and anticompetitive practices harmful to employees’ labor rights.  She
further noted the value of coordination with other agencies—such as the
Department of Homeland Security and the Department of Justice’s Employee
Immigrant Rights Section—with a view to ensuring the labor rights of immigrant
workers.  Additionally, she pointed out the need for coordination among agencies
in their ongoing responses to the COVID-19 pandemic.

Increased coordination, Abruzzo explained, would enable the NLRB to help secure
workers’ rights to union representation, protect them from systemic abuses such
as discrimination or retaliation, reduce the gender and racial wage gaps, and
promote economic opportunity, fairness, and employee mobility.  We will follow
up with any developments regarding these inter-agency efforts.

Tags: ANTITRUST, Coronavirus, COVID-19, DHS, DOJ, DOL, EEOC, General Counsel,
IMMIGRANT WORKERS, interagency, NLRA, NLRB, retaliation
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