The NLRB Embraces Relativism in its Relevance Test

By Christian White, Todd Dawson and Kubicki, Paul C on March 8, 2023 Posted in NLRB

Under the National Labor Relations Act, unions are entitled to request information from an employer that is relevant to carrying out the union’s representation duties. The key limiting principle is that the union must demonstrate the “relevance” of information that does not pertain directly to the wages, hours or working conditions of bargaining unit employees. On February 28, the National Labor Relations Board (the Board) issued a decision that significantly alters the “relevance” test.

The case in question involved Hawaii’s UNITE HERE Local 5 and a Hawaiian Hotel (“Hotel”). During the COVID-19 pandemic, the Hotel rolled out a “CleanStay” policy, which included several safety protocols, for its hotels. One of these protocols, to avoid exposing guests who feared COVID-19 to additional risk, was that guests would receive daily cleaning only if they asked.

While the Hotel was closed, the Hotel’s safety committee, composed of Hotel managers, union representatives and Hotel employees, continued to meet. A union representative later claimed that they asked management about the CleanStay policy during a safety committee meeting and were told that the policy would be implemented because guests did not want anyone coming into their rooms. The Hotel reopened in December 2020 with the CleanStay program in place, and all of the Hotel management’s communications with employees and the union stated that the program was implemented in accordance with the Hotel brand policy change.

In March 2021, the union requested guest surveys and other information from the Hotel concerning the policy change, claiming that the employer mentioned guest feedback at the prior safety committee meeting when explaining the CleanStay program. The Hotel rejected the request, stating that the information was not relevant because the policy change was based on the Hotel’s CleanStay program rather than guest concerns. The Hotel specifically refuted the union’s statements concerning the safety committee meeting and explained that management had said only that “it is the guest’s choice whether to request housekeeping service during the guest’s stay.” The union filed an unfair labor practice charge, claiming that the Hotel was withholding information relevant to the union’s representation of bargaining unit employees.

The Board issued a decision in favor of the union, affirming an administrative law judge’s ruling. The Board found that the union’s claim about what was said in the safety committee meeting, although factually contested by the Hotel, was sufficient to establish the union’s “reasonable belief” of relevance. The Board further found that even setting aside the union’s version of the safety committee discussion, Hotel management’s letter rejecting the information request justified the reasonable belief of relevance because the letter referenced “guest choice.” The Board ignored that management was refuting the union’s claim and ruled that the mention of guest choice in the letter constituted objective evidence justifying the union’s belief. Bottom line: Employers can expect to see a new union strategy — request now, justify later.

Takeaways

The Board’s ruling has significant implications for union information requests.

Previously, unions needed to demonstrate relevance by establishing a reasonable belief based on objective evidence.

Today, evidence seemingly need not be objective to establish relevance — information received after the request can be used to justify relevance.

Employers must carefully craft a response to a union’s request for information if the goal is to refrain from producing irrelevant information.

Severing from Precedent: NLRB Restricts Employers’ Ability to Include Standard Confidentiality and Non-Disparagement Provisions in Severance Agreements

By Delores Chichi and Christian White on March 1, 2023 Posted in NLRB

The National Labor Relations Board issued a decision that reversed several Trump-era rulings allowing employers to proffer severance agreements to employees containing broad confidentiality and non-disparagement provisions. The Board’s decision holds that the “mere proffer” of a severance agreement containing a confidentiality and/or non-disparagement provision is unlawful where the clause is drafted too broadly and would “chill” an employee’s ability to exercise NLRA Section 7 rights.This is a far-reaching decision that impacts both union and non-union businesses.

Read the full alert for more information on how employers should prepare.

NLRB Gifts Employees Expansive Remedies in Time for the Holiday Season

By Pat Muldowney and Nailah Bowen on December 19, 2022 Posted in NLRB

“You get more remedies! You get more remedies! Everybody gets more remedies!”

Employers found to have committed an unfair labor practice (ULP) now may be required to compensate employees for interest and late fees on credit cards, penalties for early withdrawals from retirement accounts, out-of-pocket medical expenses, and other costs incurred to make ends meet. The National Labor Relations Board (NLRB or Board) recently held that employers must compensate employees for all direct or foreseeable pecuniary harms suffered as a result of the employer’s ULP. Thryv, Inc., 372 NLRB No. 22 (issued Dec. 13, 2022).

To Deduct or Not To Deduct – NLRB Revisits Union Dues Checkoff Post-CBA Expiration

By Pat Muldowney and Nailah Bowen on October 17, 2022 Posted in NLRB

Whether employers must continue to deduct union dues from employees’ paychecks and forward such deductions to the union (i.e., a “dues checkoff” provision) after the expiration of a collective bargaining agreement (CBA) is of critical importance in the negotiation process. Not having to deduct union dues is a powerful weapon for an employer to force a union to be reasonable at the bargaining table, since the union’s income stream with respect to the bargaining unit is cut off. By contrast, if the dues checkoff requirement survives the expiration of a CBA, there is much less incentive for the union to get a deal done since it is essentially “playing with the house’s money.”

NLRB Upholds Employers’ Right to Restrict Employees’ Email Use for Union Organizing – for Now

By Pat Muldowney and Erin Sales on October 11, 2022 Posted in NLRB

Email marketing and many envelopes in smartphone screen

The issue of whether an employer can ban its employees from using the company email system for union organizing has been the subject of heated litigation before the National Labor Relations Board (NLRB or Board). Since its 2007 decision in Register Guard, 351 NLRB 1110, the Board has vacillated between finding that such bans unlawfully infringe upon employees’ right to engage in protected concerted activity (Purple Communications, Inc., 361 NLRB 1050 (2014)) and upholding such restrictions as protecting employers’ property rights (Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, 368 NLRB No. 143 (2019)). In the most recent case, T-Mobile USA, Inc. & Communications Workers of America, NLRB, 14-CA-155249 (Sept. 30, 2022), a three-member NLRB panel – made up of the Board’s two Republicans and one of the Board’s three Democrats – found that T-Mobile unlawfully disciplined an employee when it (1) selectively and disparately enforced its email policy against an employee for sending a union-related email, (2) established rules prohibiting mass emails for nonbusiness purposes in response to the employee’s union activity, and (3) told the employee that employees could not send union-related emails to work addresses.

Unlawful Harassment or Protected Concerted Activity?

By Nailah Bowen on August 22, 2022 Posted in NLRB

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.

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

By Christian White, Carlos Torrejon and Todd Dawson on August 17, 2022 Posted in NLRB

Human hand taking fan of banknotes from various counties on dark background

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.

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

By Todd Lebowitz on August 1, 2022 Posted in NLRB

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

By Todd Dawson and Michael Parente on May 24, 2022 Posted in NLRB

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.

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

By Christian White and Carlos Torrejon on May 11, 2022 Posted in NLRB

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.