Unlawful Harassment or Protected Concerted Activity?

We’ve all heard before that consistency is the key to success. The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Constellium Rolled Products Ravenswood, LLC v. NLRB, No. 21-1191 (D.C. Cir. 2022), illustrates this simple but crucial principle. In a 2-1 decision, the court held that the National Labor Relations Board (NLRB or Board) had sufficient justification for its finding that Constellium Rolled Products (Constellium) committed an unfair labor practice when it terminated an employee who wrote “whore board” on an overtime sign-up sheet.

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Employers Beware: NLRB Remedies Likely to Be More Expansive Moving Forward

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For the first time in over three decades, the National Labor Relations Board (NLRB or Board) has ordered an employer to reimburse employees for wages they lost while attending negotiation sessions on behalf of the union. Nexstar Broadcasting, Inc. d/b/a KOIN-TV, 371 NLRB No. 118 (2022). The Board found that the employer involved in the case had bargained in bad faith by having a “take-it-or-leave-it attitude” during contract negotiations. While Republican Board member Marvin Kaplan dissented from the granting of this extraordinary remedy, the Board majority (composed of Democratic Board members Lauren McFerran and David Prouty) found it appropriate because the employer was a repeat offender that had been “previously warned by the Board that extraordinary remedies might be imposed if it continued to engage in unlawful conduct.” The Board furthermore ordered the employer to reimburse the union for its bargaining expenses from January 2019 through the date that good faith negotiations begin.

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Joint Employer Test Must Consider ‘Reserved or Indirect Control,’ D.C. Circuit Rules

Still-life of chairs in big stylish conferenceroom

In 2009, the James Brown compilation album The Godfather’s Smackdown, Live! was released.It’sa two-disc compilation of live shows from 1980. I never saw James Brown live, but I did see James Brown’s Celebrity Hot Tub.

On Friday, the D.C. Circuit Court of Appeals issued a different kind of smackdown, chastising the National Labor Relations Board (NLRB) for ignoring the Circuit Court’s earlier directive about the joint employer test. Believe it or not, this case is another chapter in the ongoing Browning-Ferris saga.

Read the full article on the Employment Law Spotlight.

Third Circuit Tells the NLRB to Lighten Up and Take a Joke

The U.S. Court of Appeals for the Third Circuit has found that Ben Domenech, executive officer and publisher of the right-leaning media company The Federalist, did not threaten employees when he tweeted that he would send them “back to the salt mine” if they unionized, in FDRLST Media LLC v. NLRB, Case No. 20-3434.

Domenech’s tweet came the same day that unionized employees of Vox Media (a left-leaning competitor of The Federalist) walked off the job during contract negotiations. In response to the report, Domenech tweeted “FYI @[the Federalist] first one of you tries to unionize I swear I’ll send you back to the salt mine.” Domenech’s tweet went out to the feeds of more than 80,000 Federalist followers. 

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Stacking the Deck: NLRB General Counsel Seeks Union-Friendly Labor Law Reform in Card Check Recognition Procedure

In what can only be viewed as tilting the odds in favor of organized labor, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo recently filed a brief with the five-member, Democratic-controlled Board in a case pending on appeal – Cemex Construction Materials Pacific, LLC – to request the reinstatement of the Joy Silk doctrine.

As previously discussed here, this policy – which was rejected by the NLRB more than 50 years ago – would make it unnecessary, with limited exceptions, for a union to win an NLRB-conducted election in order to represent a group of employees. Instead, the union would simply need to obtain authorization cards from a majority of workers (i.e., 50% plus one) to gain recognition.

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NLRB General Counsel Seeks to Outlaw Employer Use of Captive Audience Meetings

On April 7, 2022, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued what may be her most pro-union directive to date – and that’s saying something.

In GC Memorandum 22-04, Abruzzo announced her intention to seek a ban on employer mandatory meetings during union organizing campaigns, commonly referred to as “captive audience meetings.” According to Abruzzo, captive audience meetings are coercive, in and of themselves, because they “inherently involve an unlawful threat” to employees if they exercise their allegedly “protected” right under the National Labor Relations Act (NLRA) “not to listen” to their employer’s message.

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The Times Are A-Changing for Employer Handbooks … Soon

As we previously reported, the National Labor Relations Board (the Board) invited public comment in January on whether it should overrule its current standard for determining the lawfulness of employee handbook policies and work rules. That standard – which applies in both union and nonunion workplaces – was adopted by the Board during the Trump administration in Boeing Co., 365 NLRB No. 154 (2017). In general, the Boeing standard balances a challenged rule’s impact on employee rights against the employer’s legitimate justifications for adopting the rule. Once this balancing analysis is complete, the Board places a challenged rule into one of three categories: (1) those that are always lawful to maintain, (2) those that are always unlawful to maintain and (3) those that must be analyzed on a case-by-case basis.

The due date for submitting briefs to the Board on this hotly contested issue expired last week, on March 7. As expected, current NLRB General Counsel Jennifer Abruzzo filed a brief urging the Board to reject the Boeing standard and to return to the prior, Obama-era test for evaluating work rules and employment policies. That standard, referred to as the “Lutheran Heritage” standard after the name of the case in which it was adopted, gave little consideration to an employer’s justification for adopting a facially neutral rule or policy. Instead, the Board focused on whether the rule might be “reasonably construed” by employees to restrict their right to engage in activity protected under the National Labor Relations Act (NLRA). If so, challenged rules and policies typically were held to be unlawful.

Application of the Lutheran Heritage standard resulted in a number of surprising decisions that ignored the practical and real-life circumstances of a workplace. For example, in Hills & Dales General Hospital, 360 NLRB 611 (2014), the Board held that a rule requiring employees to represent the employer “in a positive and professional manner at every opportunity” was overly broad and unlawfully ambiguous. In T-Mobile USA, Inc., 363 NLRB No. 171 (2016), the Board found that an employer violated the NLRA by maintaining a policy that required employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships.” In The Roomstore, 357 NLRB 1690 (2011), the Board found that a rule prohibiting “[a]ny type of negative energy or attitudes” violated the NLRA. Applying the Lutheran Heritage standard, the Board found in each of these cases that employees might reasonably construe the challenged work rule to apply to activity protected under the NLRA, with little regard for the employer’s motives for maintaining such policies.

As troubling as these decisions are, a return to the Lutheran Heritage standard under the current Board may be even worse for employers. As noted above, the Lutheran Heritage standard focused on whether employees might “reasonably construe” a challenged rule to restrict their right to engage in protected activity under the NLRA. If General Counsel Abruzzo has her way, the boundaries of what constitutes NLRA-protected activity will be greatly expanded in the next few years to encompass political advocacy, social justice and a wide array of other such issues. The expansion of NLRA protections to issues that have historically been viewed as unrelated to the workplace would render the Lutheran Heritage standard even more unpredictable.Takeaway: While the Board is not projected to issue its revised work-rule test for several months, union and nonunion employers alike should begin preparing for an unfavorable change in the law by reviewing their current work rules and handbooks.

Staying the Course … for Now

National Labor Relations Board Confirms Presumption that Single-Store Units Are Appropriate

The National Labor Relations Board (Board) recently confirmed that single-store bargaining units are presumed to be appropriate. Starbucks Corp., 371 N.L.R.B. No. 71 (Feb. 23, 2022). The union involved in the case petitioned to represent a unit of Starbucks employees who worked at a single location in Mesa, Arizona. Starbucks, however, argued that the unit instead should include all 14 stores in the region on the basis that nearly 55 percent of the employees at the store had worked at one or more other locations during the prior 2 1/2 years. The company further argued that the various store managers had little autonomy in managing their employees, and that the employees were instead subject to companywide policies and automated management tools.

Rejecting these arguments, the Board held that the petitioned-for single-store unit was appropriate. With respect to employee interchange, the Board noted that the employer’s evidence only reflected how many employees had worked at other stores, and not how often they had done so. Moreover, the union introduced evidence that less than 2 percent of the shifts at the store in question were worked by employees from other locations, demonstrating that interchange among locations was rare. Finally, regarding the issue of store manager autonomy, the Board held that the managers were responsible for enforcing company policies and that the employer’s evidence consisted largely of conclusory statements rather than specific examples.

Normally, such a decision involving application of settled principles regarding the appropriateness of single-location bargaining units would not be newsworthy. However, as we’ve previously noted, the Board is currently considering whether (or, more likely how) to revamp the rules for determining unit appropriateness. Does the Starbucks decision suggest that the Board is having second thoughts, or that it has decided not to change the law? 

Well, we were apparently absent on the day they taught mind reading in law school. But it still seems likely that the Board will substantially revisit unit appropriateness principles in the near future, regardless of the Starbucks opinion. In short, the Board didn’t need to change unit appropriateness principles in the Starbucks case in order to give the union what it wanted. In all likelihood, the Board decided on that basis that the case was not the proper vehicle for changing the law. 

So, as for most things with the Board these days, stay tuned.

TAKEAWAY: While the Board opted not to change the law on unit appropriateness in the Starbucks case, it will likely do so in the near future.

Sentence First, Verdict Later!

NLRB Orders Employer To Grant Undetermined Wage Increase

These days, the National Labor Relations Board (NLRB or Board) just gets curiouser and curiouser.

In one of its latest adventures on the other side of the looking glass, the Board held that a hospitality employer violated the law by failing to provide a wage increase to employees who had recently unionized. The employer and the union had started negotiations on an initial labor agreement but had not agreed on an economic package. In the meantime, the employer granted wage increases to nonunion employees, but not to the employees whose wages were subject to negotiation with the union. While it may seem obvious (at least to those who didn’t write the Board’s majority decision), it’s a little weird to grant increases to employees when those increases are in the process of, you know, being negotiated. Just saying. Continue Reading

The NLRB Signals It Is Time To Review Employee Handbooks – Again

“I’ll be back,” as famously stated by Arnold Schwarzenegger in “The Terminator,” likely applies to the National Labor Relations Board’s (NLRB) prior, less-employer-friendly test for examining workplace policies and procedures. Earlier this month, the NLRB invited public briefing on whether it should adopt a new legal standard when evaluating the lawfulness of employer rules.

In 2017, the Trump NLRB overruled the prior test for analyzing work rules under federal labor law and established a new balancing-of-interests framework. Boeing Co., 365 NLRB No. 154 (2017). Under the current Boeing standard and cases applying it, employers could have faith that the board would find common rules, policies and procedures lawful. Continue Reading