The NLRB Has You Covered…By The Contract 2019-09-11T13:55:26-06:00

Posted on September 11, 2019

In another stunning and sweeping decision, The National Labor Relations Board (“NLRB” or “Board”) has overturned the “clear and unmistakable” waiver test and concluded that employers may make unilateral changes to terms and conditions of employment “covered” by an existing collective bargaining agreement.

For decades, employers had negotiated lengthy “management rights clauses” into collective bargaining agreements only to have the NLRB strike down a change made by the employer by finding that the union did not “clearly and unmistakably” waive its right to bargain about the change. For example, if an agreement indicated that an employer could issue and amend policies and rules, the NLRB would usually find a violation of National Labor Relations Act (“NLRA” or “Act”), unless the Board found that waiver “sufficiently specific” to encompass the change. In other words, employers would negotiate what they believed was an effective waiver, only to have their bargain disrupted by the union filing an unfair labor practice charge.

Under the new test, employers will be able to rely on a defense that the objected-to change was covered by the language of the collective bargaining agreement. In such cases, the Board will now “give effect to the plain meaning of the relevant contractual language” and find a change covered if it “falls within the compass or scope of contract language that grants the employer the right to act unilaterally.”

The significance of the NLRB’s decision is best encapsulated by dissenting Member McFerran’s characterization of it: “The implication of the majority’s new standard is clear: If a management-rights provision in a collective bargaining agreement is sufficiently general, it will permit an employer to act unilaterally with respect to any specific term or condition of employment that plausibly fits within the general subject matters of the provision.”

MV Transportation, Inc., 368 NLRB No. 66 (September 10, 2019).

NLRB Enhances Its View of Property Rights 2019-09-06T17:13:53-06:00

Posted on September 6, 2019

By Patrick Scully

The National Labor Relations Board (“NLRB” or “Board”) has settled a long-brewing controversy over what constitutes “discrimination” with respect to non-employee access to employer property. Twenty years ago, the Board held in Sandusky Mall, 329 NLRB 618 (1999), that an employer discriminates against non-employee union representatives if it bars them from its property while permitting access to charitable and civic organizations.

The Sandusky decision was widely criticized in the United States Courts of Appeals. The decision also put employers in the unenviable position of weighing the legal risk of permitting the Girls Scouts and Salvation Army on their property. Today, the NLRB finally overruled Sandusky and adopted a definition of discrimination that accords with the prevailing view in the federal courts.

Now the NLRB will only find that an employer has discriminated in its denial of access to union representatives if it permits access to other organizations for similar types of activities. The Board no longer considers charitable, civic, and commercial activities to be similar to nonemployee union organizational activities. In applying its new rule to the case at hand, the NLRB found that Kroger did NOT discriminate when it barred non-employees urging a boycott of Kroger while permitting various charitable and civic entities on its property. In dissent, Member McFerran complained that the majority is issuing a series of cases making “it increasingly easy” for employers to exclude union organizers from property “open to the public”.

Kroger Mid-Atlantic, 368 NLRB No. 64 (September 6, 2019).

NLRB Serves Up An Epic Ruling For Employers 2019-08-15T10:20:02-06:00

Posted on August 15, 2019

By Patrick Scully

In its first significant decision applying the Supreme Court’s holding in Epic Systems v. NLRB, 584 U.S. ____, 138 S.Ct. 1612 (2018), the National Labor Relations Board (“NLRB” or “Board”) ruled that a restaurant owner lawfully compelled its employees to sign a revised mandatory arbitration agreement.

The employer, an operator of Latin-themed restaurants in the Houston area, required its employees to sign a revised arbitration agreement prohibiting them from opting into a class or collective wage and hour action. The employer issued the revised agreement because several employees had opted into such a wage action and the employer’s prior arbitration agreement only prohibited employees from filing class or collective actions.

The Board noted, in light of Epic Systems, that it was simply not unlawful under the National Labor Relations Act (“Act”) for an employer to require its employees to waive their right to file or opt into class or collective wage and hour actions. Accordingly, it was not unlawful for the restaurant owner to insist on its revised agreement as a condition of employment. Although it was clear that the employer imposed the new agreement in response to employees participating in the wage and hour action, the NLRB reasoned that the employer did not retaliate, because the new agreement did not actually restrict any activity protected by Section 7 of the Act.

Dissenting Board Member McFerran took issue primarily with this last point, noting that the NLRB has historically found that a facially valid work rule must be struck down if it is promulgated in response to “protected” (Section 7) activity. Member McFerran disagreed with the majority that this precedent only applied to rules that imposed restrictions on union or other protected activity. By suggesting that the Board’s decision “departs from Board precedent without explanation”, the dissent provided a recipe for the restaurant owner’s employees to appeal the decision.

Cordua Restaurants, Inc. 368 NLRB No. 43 (August 14, 2019)

NLRB Body Blow: Union’s Lobbying Not Chargeable To Nonmember Employees 2019-03-01T17:45:58-06:00

Posted on March 1, 2019

By Patrick Scully

The National Labor Relations Board (“NLRB” or “Board”) has ruled that unions cannot charge nonmember represented employees for union lobbying expenses. Under the Supreme Court’s decision in Communication Workers v. Beck, 487 U.S. 735 (1988), nonmember represented employees can only be charged “representational fees” in states that permit ‘union security’ (compelled payment of dues as a condition of employment). In other words, employees who do not wish to join a union can be prevented from becoming so-called ‘free riders’ because the union that represents them can collect fees “necessary to performing the duties of an exclusive representative of the employees in dealing with the employer on labor management issues.” On March 1, 2019, The NLRB concluded that, under the Beck standard, a union representing nurses in Rhode Island and Vermont could not charge nonmember nurses for the union’s lobbying efforts on seven bills. In short, the Board found that the fact that some of the bills related to employment issues did not demonstrate that the lobbying was necessary for the union to perform its statutory function as the employees’ representative. In a signature dissent low on case law and high on righteous indignation, Member McFerran argued that a union should be able to prove how certain lobbying might be “germane” to collective bargaining. This legal argument was previously considered and rejected by the District of Columbia Circuit Court Appeals, consistent with established Supreme Court precedent.

United Nurses and Allied Professionals (Kent Hospital), 367 NLRB No. 94 (March 1, 2019)

The Changed NLRB Reasonably Defines “Change” 2017-12-18T09:15:42-06:00

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.

NLRB Gets New General Counsel, Employers Exhale 2017-11-09T17:40:56-06:00

Posted on November 9, 2017

By Patrick Scully

On November 8, 2017, the United States Senate confirmed the President’s nomination of Peter Robb as General Counsel of the National Labor Relations Board. GC Robb will replace Richard Griffin, whose tenure was marked by aggressive prosecution and attempts to expand the scope of the NLRB’s jurisdiction. Notably, GC Griffin launched a new “joint employer” theory, repeatedly prosecuted employers for maintaining allegedly unlawful rules, attempted to expand the definition of “employee”, and greatly increased the use of injunctions and extraordinary remedies against employers. GC Robb is largely expected to take a more balanced approach to enforcement of the law. Mr. Robb is a former Board Attorney and former Chief Counsel to NLRB Member Hunter. Mr. Robb has had a distinguished career as a management-side labor lawyer, is a long-standing member of the NLRB Practice and Procedure Committee, and is widely respected. Employers are hopeful that GC Robb will immediately scale back former GC Griffin’s more controversial initiatives, but it is unlikely that the new General Counsel will take any steps to alter the course of cases already in the administrative/court process.

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!”

NLRB’s “Biggest Idiot” Test Benchslapped 2017-07-31T09:58:42-06:00

Posted on July 31, 2017

By John Doran

The NLRB analyzes employer policies to see if the policies “chill” employees’ rights to engage in concerted protected activity under the NLRA. The NLRB says it applies a “reasonable person” test, which asks “would a reasonable person construe the policy to restrict protected activity?” But the current NLRB actually applies what we call the “biggest idiot” test, which asks, “is there a way the biggest idiot on Earth could construe the policy to restrict protected activity?” Applying this biggest idiot test, the NLRB repeatedly has struck down innocuous employer policies. Last week, the Fifth Circuit Court of Appeals took aim at the NLRB’s test.

T-Mobile’s policies (1) encouraged “a positive work environment”; (2) prohibited “[a]rguing or fighting” and “failing to demonstrate appropriate teamwork”; (3) prohibited photography and recording at work; and (4) prohibited access to electronic info without approval. The NLRB found all four policies chilled protected activity. The Court reminded the NLRB of two critical foundations of the reasonable person test. First, the context of the workplace and the policy matters. Second, the NLRB cannot twist the test to ask what could, rather than what would, a reasonable person do. The Court found that a reasonable T-Mobile employee would read three of the policies in context and conclude they do not restrict protected activity. The Court sided with the NLRB on the photo/recording policy; that policy could reasonably be read to prohibit protected activity, e.g. photographing a work schedule.

All in all, it was a good day for employer policies. The Court reminded the NLRB it must apply the reasonable person test in a reasonable manner. On the positive work environment policy, the Court said the NLRB’s “position is not ‘reasonably defensible.’ It is not even close.” Will this stop the NLRB from taking indefensible positions going forward? No. Not even close. T-Mobile v. NLRB, No. 16-60284 (5^th Cir. July 25, 2017).

Disparagement Doesn’t Require Malice 2017-07-05T09:09:26-06:00

Posted on July 5, 2017

By Patrick Scully

The NLRB recently has upheld some of the most outrageous employee conduct because it viewed the conduct to be part and parcel of “protected, concerted activity”. An egregious example of this trend was the NLRB’s finding that a number of Jimmy John’s employees were improperly discharged for publicly disparaging the company’s product. Specifically, employees, at the direction of a union, distributed posters and otherwise publicly claimed that Jimmy John’s sandwiches were made by sick employees. Although the Supreme Court long ago held that such public disparagement of a company or brand was “unprotected,” the NLRB had more recently required employers to show that such disparagement was “malicious”. The 8th Circuit rejected the NLRB’s revised standard and refused to enforce the order – calling the sick employee posters what they are – unprotected public disparagement. Miklin Enterprises, Inc. v. NLRB, No. 14-3099 (8th Cir. July 3, 2017).

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