NLRB General Counsel Peter B. Robb has made a first and lasting impression with his initial Memorandum describing Mandatory Submissions to Advice. General Counsel Robb announced his intent to review, through the Division of Advice, new cases involving issues that the Obama-appointed NLRB regularly prosecuted as unfair labor practices. Among other matters, GC Robb will review cases: where vulgar, obscene, or racist conduct/statements were declared to be “protected concerted activity;” where innocuous employer rules were declared unlawful (including confidentiality rules, rules prohibiting disrespectful conduct, etc.); arising under Purple Communications; involving alleged joint employers, requesting an expansion of employees’ Weingarten rights; involving off-duty access to employer property; concerning expansion of successorship; and involving expanded remedies. In short, it appears that GC Robb will be reviewing (and potentially reversing course on) every ‘hot button’ issue prosecuted by his predecessor Richard Griffith. Additionally, Mr. Robb announced the rescinding of prior GC Memoranda and novel legal theories advanced by the former General Counsel. For instance, GC Robb rescinded the Memorandum regarding unlawful employer rules, the Memorandum requiring “default language” in Board settlement agreements, and the model briefing instructions on partial/intermittent strike cases. GC Robb also instructed the Regions to cease seeking to extend the Purple decision to other electronic systems, cease arguing that “misclassification” of employees is an unfair labor practice, and cease trying to further curtail employer free speech in union organizing campaigns. While the General Counsel’s announcement will not affect an immediate change in the law, it is a very good sign for employers who have been suffering under the heightened scrutiny of Mr. Robb’s predecessor. The full list of GC Robb’s initiatives is set forth in the Memorandum (link below). Memorandum GC 18-02 (December 1, 2017).
In its seemingly unending quest to reverse long-settled employer defenses, the National Labor Relations Board (“NLRB” or “Board”) has instructed an Administrative Law Judge to reconsider his decision denying reinstatement to an employee fired for dishonesty. The employee had been improperly denied a Weingarten representative in an investigatory interview. However, the employee had not been terminated for requesting a Weingarten representative, he was terminated for the dishonesty that came to light during the investigatory meeting. Historically and at least since 1984, the NLRB had denied reinstatement as remedy for a Weingarten violation unless the employee was discharged for asserting his/her right to a Weingarten representative. Absent that circumstance, the usual remedy is a cease and desist order and a notice posting. Notwithstanding the 30 years of precedent, the NLRB announced a new standard that will require reinstatement of an employee discharged based on misconduct that occurs during an unlawful interview, unless the employer can show it would have terminated the employee absent the misconduct. In other words, as described by Dissenting Member Johnson, the NLRB is adopting a “fruit of the poisonous tree” standard. No matter how egregious the misconduct, if it is discovered during an unlawful interview, the employee will be entitled to seek reinstatement. Although it is impossible to predict where the Board will strike next, unionized employers are well-advised to ensure compliance with the Weingarten rule, in view of this new “get out of jail free card.”
E.I Dupont de Nemours and Co., Inc., 362 NLRB No. 98 (May 29, 2015).
On February 5, 2014, the National Labor Relations Board (“NLRB”), acting this time with a full quorum, reissued its highly controversial 2011 changes to representation election rules. The proposed changes are the same as those the NLRB presented in 2011. The rule changes would:
- radically speed the pace of representation elections,
- eliminate almost all pre-election challenges to voter eligibility, and
- effectively eliminate the ability of employers to communicate with employees prior to voting.
The proposed rules will be subject to a 60 day comment period, followed by a public hearing in April. The NLRB majority did not revisit the now stale, purported factual findings that led to the original proposed rule changes. These factual findings were extensively questioned in the prior comment period. Much of the purported employer “misconduct” cited was based not on the NLRB’s own case handling statistics, but on the reports of union organizers.
The NLRB claims that the new rules will stream-line the election process. On the contrary, these radical and unnecessary alterations to a process that has stood for over 75 years will likely result in extensive and costly litigation.
In the controversial 2012 decision D.R. Horton, Inc., the NLRB held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual (as opposed to class) arbitration violate NLRA § 8(a)(1). That statute forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” The D.R. Horton decision has since been rejected by the Ninth Circuit and the Second Circuit Courts of Appeals. The Eighth Circuit declined to follow it, and Fifth Circuit finally overturned it.
Despite all of these decisions, as well as the Supreme Court’s decision upholding an arbitration agreement’s class waiver provision, the NLRB is not only holding fast to its reasoning in D.R. Horton, it is expanding it. On January 17, 2014, in Leslie’s Poolmart, Inc., No. 21-CA-102332, an NLRB administrative law judge held than an arbitration agreement violates § 8(a)(1) even though the agreement does not expressly prohibit employees from bringing class or collective actions. The judge reasoned that the very act of enforcing the agreement leads employees to reasonably believe they cannot engage in concerted activity. Meanwhile, on January 21, 2014, the Ninth Circuit denied a plaintiff’s motion to reconsider its decision rejecting the NLRB’s reasoning in D.R. Horton. Suffice it to say, the NLRB’s distaste for arbitration agreements is at odds with federal courts’ strong policy of enforcing them. Could this dichotomy be an issue taken up by the Supreme Court? Stay tuned.
In court to get an injunction, the National Labor Relations Board faced the now-familiar argument that it lacked a quorum when the petition was authorized. See Noel Canning v. NLRB, 705 F.3d 490 (DC Cir. 2013), petition for cert. granted NLRB v. Noel Canning, et al., 12-1281 (June 24, 2013). To avoid the issue, the NLRB contended that its Acting General Counsel, Lafe Solomon, had legal authority to bring the injunctive proceeding, regardless of the Board’s quorum. Specifically, the NLRB claimed that Solomon was appropriately appointed pursuant to the Federal Vacancies Reform Act (“FVRA”). Hooks v. Kitsap Tenant Support Services, Case No. C13-5470 (W.D. WA August 13, 2013).
The district court judge ultimately followed the Noel Canning decision and denied the Board’s petition for an injunction because the Board lacked a quorum, but the judge went on to consider the NLRB’s alternative argument and ruled that Solomon was not validly appointed. Solomon had not previously served as the personal assistant to the departing officer, consequently the underlying administrative complaint upon which the NLRB sought an injunction was not validly issued.
Although no other federal court has ruled on this issue, this decision might encourage other employers to challenge the issuance of NLRB administrative complaints under the FVRA. Thus, the NLRB, in its zeal to defend its right to proceed, may have given employers an entirely new defense.
By Mike Grubbs
Another federal circuit court has struck down one of President Obama’s recess appointments to the National Labor Relations Board. In N.L.R.B. v. New Vista Nursing and Rehabilitation, the Third Circuit Court of Appeals held that the recess appointment of Craig Becker in March 2010 was invalid because the Senate was not actually in a recess when the President appointed Becker to the Board. Because the Senate was not in recess, the President lacked the authority to unilaterally appoint Becker, according to the court of appeals. And, because Mr. Becker’s appointment was invalid, the NLRB was operating without a quorum and lacked authority to issue orders. The Third Circuit’s decision corresponds with the D.C. Circuit’s well-publicized Noel Canning decision, which held that the President lacked authority to make two recess appointments to the Board because the Senate was not truly in recess at the time of the appointments.
By: Karla E. Sanchez
The mates on a tug boat may “demand obedience” and charge an insubordinate deckhand with mutiny, but this doesn’t make the mates supervisors, according to the National Labor Relations Board (“Board”). Brusco Tug and Barge, Inc., 359 NLRB No. 43 (December 14, 2012). In this case, the Board determined that mates lack sufficient authority to assign or direct other employees, even though the mate (a) is in charge when the captain is off-duty; (b) instructs the deckhand and engineer; (c) makes recommendations to the captain; (d) determines when there are emergencies; and (e) conducts safety drills. According to the Board, these facts do not show supervisory status because many of these tasks are routine or undertaken pursuant to written instructions. The Board also determined that, because most of this employer’s crews include only four members (captain, mate, engineer and deckhand), the mate’s instructions to either the engineer or the deckhand lack independent judgment; the mate has no choice but to assign engine work to the engineer and deckhand work to the only deckhand onboard. Apparently, supervisory status to the Board is based on the number of subordinates. The Board dismissed maritime law putting the mate in command as irrelevant to the issue of supervisory status under labor law.
This case had already been to the courts because the Board deviated from its own earlier, similar cases, in making its ruling. The Board justified this variation by simply noting that it has changed the test for supervisory status.
The message for non-sea-faring employers is that the NLRB holds itself separate and apart from whatever regulatory scheme applies to your industry. Just because Congress or an executive agency puts authority to direct activity in the hands of a particular person does not mean that person is a supervisor under labor law.
So watch out for future tides. No one knows where the Board will sway next.
The Court of Appeals for Washington D.C. ruled today that the President’s “recess” appointment of three members of the National Labor Relations Board was unconstitutional. Although the Senate was not holding sessions, it was not in “The Recess” either and therefore the President could not make a “recess” appointment. What happens now to all the NLRB rulings since last January?
By Emily Keimig
Despite the NLRB’s stated hostility toward class action waivers between employers and employees, the courts continue to support arbitration agreements that include class action waivers. In a recent case, the plaintiff sued Bristol Care on behalf of herself and other co-workers, for alleged violations of the Fair Labor Standards Act (“FLSA”) because, she claimed, Bristol Care had improperly classified certain administrators as “exempt” employees for purposes of state and federal overtime laws. However, the plaintiff had signed a Mandatory Arbitration Agreement (“MAA”) that (1) required her to arbitrate “any…legal theory” she might bring against Bristol, including a theory of FLSA violations; and (2) also precluded arbitration of any class claims (“the class waiver”). Despite the MAA, the plaintiff filed suit in federal court. Bristol Care moved to compel arbitration.
The district court had denied Bristol Care’s motion, relying on the NLRB’s decision in D.R. Horton, Inc.. The district court, and the NLRB, reasoned that class waivers conflict with employee rights (whether union-represented or not) protected by Section 7 of the National Labor Relations Act. Because the MAA had a class waiver, the district court refused to enforce the MAA.
However, the Court of Appeals rejected the district court’s reasoning, and whole-heartedly joined the trend of judicial friendliness toward arbitration agreements, even those with class action waivers. The Court of Appeals flatly rejected the plaintiff’s argument that the Court should join or endorse the NLRB’s theory in D.R. Horton. Owen v. Bristol Care, Inc., No. 12-1719 (8th Cir. January 7, 2013).
The NLRB’s positions continue to fall outside the mainstream on employer rights—all the more reason to be wary when the Board becomes involved in your business.
The National Labor Relations Board (“Board”) has ruled again on social media issues. In this case, five employees were discharged for their on-line responses to a coworker. Hispanic United of Buffalo, Inc., 359 NLRB No. 37 (December 14, 2012). The co-worker had complained that people in the office were not performing their jobs. One of the five employees posted the work-related criticism, and added: “[m]y fellow coworkers how do u feel?” The other four employees responded; each objecting to the accusations that they did not do their job.
The original job-critic naturally complained to management that she had been slandered, defamed, and harassed by these Facebook posts, and the employer discharged the five coworkers for bullying and harassing the critic. However, the Board has found that the employer could not discharge the five coworkers, despite allegations of harassment, defamation, and slander, because their Facebook posts constituted protected concerted activities under the National Labor Relations Act (“Act”). Because the five employees were posting about the terms and conditions of employment and for “mutual aid and protection,” their communications were protected by the Act.
Keep this in mind in the future when employees gang up against a co-worker.