NLRB Says Organizer Access to Public Spaces is Not on the Menu 2019-06-18T14:30:59-06:00

Posted on June 18, 2019

Over thirty-five years ago, the NLRB held that an employer may not prohibit a union organizer’s access to an employer’s privately owned, but publicly accessible areas, such as an employer’s public restaurant or cafeteria, unless the organizer engages in “disruptive” conduct. A long line of subsequent Board decisions confirmed this rule. However, last Friday, the Board unequivocally reversed a slew of its prior decisions on this issue in UPMC, 368 NLRB No. 2 (06-CA-102465, June 14, 2019).

UPMC is a hospital facility that provides a publicly accessible cafeteria. Union organizers held a peaceful lunch meeting with some UPMC employees in the cafeteria. When UPMC Security learned of this, they called the police and had the organizers removed. The union filed unfair labor practice charges, and an Administrative Law Judge found in favor of the union.

On appeal, the Board reversed the ALJ’s decision. The Board reviewed a long line of federal circuit court decisions resoundingly criticizing the Board’s historical approach to organizer access to public spaces, and noted that the Board’s long-standing position directly contravened existing Supreme Court jurisprudence. The Board concluded that organizer access to privately owned, public spaces is governed by the Supreme Court’s decision in NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1965), which held that an employer may lawfully exclude union organizers from its property, except in the very rare instances where either the union has no other reasonable means to communicate with employees or where the employer discriminates against the union by allowing solicitation or distribution by others but not the union. Applying Babcock & Wilcox to these facts, the NLRB held that the employer did not violate the Act by removing the organizers because they were engaged in distribution and solicitation and the employer had consistently excluded other patrons who engaged in such activities for non-union purposes.

While the UPMC decision noted that the ruling should not impact existing employer no-distribution/no-solicitation rules, it likely does impact the application of existing employer rules for employers that have publicly accessible areas on their private property. Regardless, this landmark ruling should prompt all employers to revisit both the language and the enforcement of their no-distribution/no-solicitation rules to ensure that they are legal, robust, up to date, and consistently enforced. Employers are also wise to note that they may not exclude union organizers from public areas merely because they are organizers—it is the conduct of soliciting or distributing that supports their exclusion, not their mere affiliation with a union.

Outrage No Substitute for Relevance 2018-12-05T14:37:24-07:00

Posted on December 5, 2018

By Patrick Scully

The NLRB General Counsel’s Division of Advice recently rejected a union’s claim that it was entitled to receive financial data regarding an employer’s intended use of government largesse resulting from the federal Tax Cuts and Jobs Act (“TCJA”). The employer had announced plans to use some of the tax benefit to pay bonuses to and increase 401(k) contributions for its non-union employees. Because the union was bargaining on behalf of employees at a number of the employer’s television stations, it declared that Congress intended the tax benefit to “trickle down” to workers and requested, among other things, the employer’s estimate of gains due to the tax cut, as well as plans for capital investment, executive compensation, and plans for stock buybacks and dividends.

The Division of Advice found primarily that the employer’s decisions regarding how to spend the tax gains were matters of core entrepreneurial concern and not mandatory subjects of bargaining. Accordingly, the union was not entitled to information regarding those decisions. Additionally, while the employer had declared that it intended to share some of the tax gains with employees, it did not ever claim that its ability to provide benefits to union-represented employees was related to the tax benefits or its plans for the money. The employer never claimed that it could not fund (or could not afford) increases in benefits for union-represented employees. Because the Union could not identify a factual assertion made by the employer in bargaining to which the information could arguably relate, the Division found no violation in the employer’s refusal to provide the requested information.

While this case did not involve a change in the law, it is a good reminder about the importance of an employer’s language in bargaining—it is always better for an employer in bargaining to declare it won’t do something than to claim that it “can’t”.

Nexstar Media Group, Inc. Case 3-CA-22094, Advice Memorandum (October 15, 2018)

NLRB GC Leashes Pavlov’s Dog 2018-08-03T10:58:47-06:00

Posted on August 3, 2018

By: Patrick Scully

NLRB General Counsel Peter Robb this week directed his staff not to object when an employee, who is trying to decertify a union, moves to intervene in a related unfair labor practice case. Typically, when employees try to decertify the union that represents them, the union’s Pavlovian response is to file a charge claiming the employer induced or assisted the decertification effort. Unions tend to argue it is inconceivable employees would be dissatisfied with their services without a nudge from the employer. In the past, the NLRB has typically prevented employees from intervening in inducement/assistance charges. Unfortunately, as a result, employees (and their advocates) rarely have the opportunity to speak for themselves and deny that the employer caused the decertification. The GC’s directive means employees are more likely to be heard in all aspects of the decertification process. GC Robb’s move is another example of his plan to bring better balance to the enforcement of the National Labor Relations Act.

The memo is available here.

Facebooking Misappropriated Employer Form Is Not Protected Activity 2018-07-17T14:41:32-06:00

Posted on July 17, 2018

By Chance Hill

On June 11, 2018, the National Labor Relations Board (Board) Division of Advice applied the Board’s new Boeing standard for assessing employer policies. The Division advised that an employer did not violate the NLRA when it discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s desk. Kumho Tires, 10-CA-208153 (July 13, 2018)

The employer was in the middle of a union-organizing drive and had been fighting rumors that it paid managers bonuses to fight the union. One employee took a bonus-request form from a team leader’s desk. The form seemed to be asking for a bonus for the team leader’s anti-union efforts. The employee gave a copy of the form to a second union supporter. The second union supporter posted the form to a private, union supporting Facebook group. The employer discharged the second union supporter for violating the employer’s social media policy.

Under the recent Boeing standard, if the rule is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. Here, the work rule ordered “Maintain the confidentiality of the Company’s trade secrets and private or confidential information,” and it called out “internal reports, policies, procedures, or other internal business-related confidential communications” as well as trade secrets. The Division advised that the work rule was lawful because it did not explicitly refer to employees, their terms and conditions of employment, or any other NLRA-covered communications. The Division also advised that, although the Facebooker was engaged in protected concerted activity, he forfeited that protection. Posting the documents was “such disloyalty” that it fell outside the NLRA’s protection. The union supporter knew that the form had been wrongly procured.

Note: Reason is enjoying a revival at the Board. But note also: If the employees had only repeated the information readily viewable on the Team Leader’s compensation form, and had not copied it, all their discussion about the form – including that the employer was paying bonuses and, besides, that the employer was rolling in cash and could afford to increase wages – would have been protected under the NLRA. Try to put confidential information away.

This blog post has been picked up by the Employment Law Daily Newsletter.

The Changed NLRB Reasonably Defines “Change” 2017-12-18T09:15:42-07:00

Posted on December 18, 2017

By Patrick Scully

The new National Labor Relations Board (“NLRB” or “Board”) reversed another Obama Board decision on Friday. In Raytheon Company, 365 NLRB No. 161 (December 15, 2017), the Board returned to long standing precedent that the question of whether an employer has made a “change” should take into consideration the employer’s standing practices. The Obama Board had rejected that interpretation in E.I. du Pont de Nemours, Louisville Works, 355 NLRB 1084 (2010), when it held that because a practice was not set forth in the parties’ collective bargaining agreement, the employer could not continue to exercise the practice after expiration of the agreement. The new NLRB disagreed, finding the DuPont decision inconsistent with the long-standing “commonsense” definition of what is actually a “change” in employees’ terms and conditions of employment. Accordingly, Raytheon was free to make its usual adjustments to health benefits as it had in prior plan years. It was not required to provide the union with notice and an opportunity to bargain the practice simply because the agreement expired.

Racist Picket Conduct Protected 2017-08-09T16:16:42-06:00

Posted on August 9, 2017

By Bill Wright

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications, Inc. v. NLRB, (D.C. Cir. 2016), the Board continues to force employers to ignore sexist and racist conduct, and the courts continue to defer to the NLRB on the issue.

In Cooper Tire & Runner Co. v. NLRB, No. 1602721 (8th Cir. August 8, 2017), a picketer yelled racist comments at a van carrying strike-breaking workers. Some number of the strike breakers were African American, and the picketer yelled references to fried chicken and watermelon. When the strike and lockout ended, the company did not hire the picketer back, citing his conduct as unrelated to the picketing activity. An arbitrator found the termination to be for good cause, but the NLRB disagreed, overruled the arbitrator, and found an unfair labor practice. The court agreed with the board. The picketer had his hands in his pockets, and there was no evidence the employees in the van heard the comments or felt threatened or coerced.

The call for the NLRB to recognize public standards of employee civility, even in strike conduct, grows however. In Consolidated Communication, the criticism of the Board’s policy came in a concurring opinion. In Cooper Tire, Sr. Judge C. Arlen Beam dissented altogether. Judge Beam called for the NLRB to recognize that “the racial epithets expelled by [the picketer] were not simply tolerated, impulsive behavior. They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act.”

Epic NLRB Benchslap 2017-08-07T16:36:52-06:00

Posted on August 7, 2017

By John Doran

An agreement between the UFCW and the Fred Meyer grocery store chain restricted the union’s ability to visit with store employees in public view. But things went south when the UFCW declared war on Fred Meyer. Some eight union representatives showed up at a Fred Meyer store and began disrupting business and violating the parties’ agreement on union store visits. The situation quickly escalated and three union representatives were arrested. The NLRB found that Fred Meyer unlawfully changed its policy concerning union visits during this incident, and ordered the store to make whole the three union representatives who were arrested. The D.C. Circuit flatly disagreed. Fred Meyer Stores, Inc. v. NLRB, No. 15-1135 (D.C. Cir. August 1, 2017).

The Court’s NLRB criticisms are astounding. The court described the NRLB’s decision as “more disingenuous than dispositive; it evidences a complete failure to reasonably reflect upon the information contained in the record and grapple with contrary evidence—disregarding the need for reasoned decision making.” The Court sharply criticized the Board for completely ignoring facts, and pointed to the Board’s “tone deafness” to key facts. The Court concluded that “the Board’s actions in this matter are more consistent with the role of an advocate than an adjudicator.” To that, we say: “hear hear!”

OSHA Dumps Crocodile Dundee Rule 2017-05-02T12:59:58-06:00

Posted on May 2, 2017

By Pat Miller and John Alan Doran

You may recall from the Crocodile Dundee movies that Dundee was a big fan of walkabouts in the Australian outback…and Manhattan. A while back OSHA began encouraging walkabouts of a sort. Back in 2013, OSHA issued its infamous “Fairfax memo”, which concluded that non-union employees could designate a union representative or organizer to accompany OSHA compliance officers during inspections. That guidance was obviously anti-employer and pro-union. It gave union representatives access to the workplace and the appearance of looking out for the workers, even in companies where the union was not the workers’ designated representative.

Just last week, OSHA came to its senses and rescinded the guidance. The guidance was the subject of a court challenge, and OSHA withdrew it in exchange for a dismissal of that suit. This move is consistent with the new administration’s emphasis on deregulation. So, when OSHA initiates an inspection of your non-union worksite, it is less likely that a wandering union representative or organizer will tag along, just for the adventure.

Persuader Rule Permanently Benchslapped 2016-11-16T14:39:00-07:00

Posted on November 16, 2016

By John Alan Doran

Today a federal judge entered a permanent injunction preventing the DOL from implementing its so-called “Persuader Rule”, which created substantial disincentives for the use of persuaders and attorneys during a union organizing campaign. National Federation of Independent Business, e al. v. Perez, No. 5:16-cv-00066-C (N.D. Tx. Nov. 16, 2016). We previously wrote on this same case, when the same judge issued a preliminary injunction against the rule. (Enforcing Persuader Rule Enjoined) In an extremely succinct opinion, the judge entered summary judgement against the DOL and converted the preliminary injunction into a permanent injunction. What happens from here is anybody’s guess given our recent election results, but it’s a fairly safe bet that we have heard the last of this rule for the next four or so years at least. Even were the DOL to appeal the decision before President Obama’s term ends, the new administration would have sufficient time to withdraw that appeal before it is ever heard.

NLRB Classifies TAs as Employees 2016-08-23T13:13:52-06:00

Posted on August 23, 2016

By Bill Wright

The NLRB chose not to interfere with collegiate football. Northwestern University, Case 13-RC-121359 (August 17, 2015). Collegiate teaching assistants, though, are another thing. In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent to assert that teaching assistants (“TAs”) are “statutory employees” and may choose to have union representation. The Board majority’s reasoning, roughly, was that the NLRA covers any employee (except managers), unless there are good reasons to exclude them; and there is no empirical evidence to justify excluding TAs. As the dissenting Board member pointed out, all those NLRB decisions we’ve been blogging about now apply in the college setting: TAs may use strong and abusive language about their supervisors in public media posts; college investigations (e.g. into sex harassment of students) might not be kept confidential; and colleges won’t be able to enforce vague civility rules like “collegiality.” Many public universities already have state-authorized collective bargaining, but the liberal arts college experience might be forever altered. Too bad we can’t gather empirical evidence from the future.