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NLRB's Continuing Assault on Workers' Rights

October 23, 2020

Last week, the House Committee on Education and Labor released a report titled: Corruption, Conflicts, and Crisis: The NLRB's Assault on Workers' Rights under the Trump Administration.  This excellent report summarizes and chronicles the Trump Board’s attack on workers’ rights through its decisions, GC memos, and internal ethics memos. The report comes a month after the NLRB’s records were subpoenaed when it refused to produce the requested documents to the House Committee for nearly 18 months. The Committee emphasizes what we all know: There is a desperate need for Congress and the next Administration to restore the NLRB’s ability to protect workers!  This report provides support for that effort and further insight into what is needed.  We encourage you to read at the link above and distribute to your members, especially those who may still be on the fence about the need to defeat Trump and his policies.

Board Abandons Precedent Allowing Free Speech

July 30, 2020

Last week, the Trump Board in General Motors LLC announced another shot across the bow at unions by changing the standard under which it will evaluate discipline issued to employees who make abusive or offensive statements—including profane, racist, and sexually unacceptable remarks—in the course of activity that would otherwise fall under the protection of the Act.

The burden-shifting standard announced yesterday applies to conduct in the workplace, on social media, or on a picket line where the Charging Party alleges that discipline was motivated by the protected activity, but the employer asserts that it was motivated by abusive conduct. If the employer can adequately establish that it would have disciplined the employee regardless of what led to the outburst, the discipline should be found lawful.

In the past, employees taking part in protected concerted activity—actions taken to improve their wages, hours, or working conditions—have been "permitted some leeway for impulsive behavior" and the degree to which an employer had to permit it was "balanced against an employer's right to maintain order and respect."

In the General Motors, a union employee repeatedly engaged in "profane and racially offensive conduct towards management." The employee objected profanely to the lack of overtime coverage for employees away for training, portrayed managers as slave masters, made implied threats against managers, and, during a meeting, blasted music that contained "profane, racially charged, and sexually offensive lyrics." Each incident led to progressively longer suspensions ranging from three to 30 days.

The Trump Board abandoned long standing precedent and determined that these issues should be treated the same as other discipline cases. Using what is referred to as the Wright Line test, the Board will follow the Wright Line burden shifting analysis allowing most discipline to stand.

In our view, Employers subject to a just cause standard still cannot prohibit employees' engagement in protected concerted activity, must still enforce work rules consistently, regardless of the circumstances, must still document the specifics and cite the applicable rule or policy, and must still objectively review the facts to ensure the level of discipline was not motivated by the employee's protected activity.

New GC Memo 20-09 Aims to Penalize Unions

June 30, 2020

On June 26, 2020, the Trump Board’s GC Peter Robb issued a new GC Memo to the Regions in which he invoked a new process designed to encourage the Board to reverse its long standing  decision in Ironworkers Local Union 377 (Alamillo Steel), 326 NLRB 375 (1998).  The decision sets forth a standard for determining if a union who has breached its duty of fair representation (“DFR”) should face a monetary consequence.  Robb’s latest anti-union diatribe is aimed at making it much easier to impose monetary liability on unions.   A full copy of the memo is available here.

The Board’s decision in Alamillo Steel, held that – when a union breaches its DFR by failing to process a grievance – the General Counsel must show that the grievant would have prevailed in an arbitration if it had been lawfully processed, then assess any increase in damages payable by the union due to the union’s misconduct, as distinguished from the Employer’s misconduct.

Robb argues that requiring the GC to prove that a grievant would have prevailed has been too difficult and causes guesswork. Therefore, Regions should urge the Board to reverse Alamillo Steel and adopt a standard requiring the burden to shift to the union to prove a negative.  Namely, that the grievance was not meritorious. If the Union is unable to do so, it would then be required to make the employee whole. 

While GC Robb states that Regions are still free to attempt to settle these types of cases, if they are unable to so, then the Board should litigate to reverse Alamillo Steel.

Fortunately, this memo is only about remedies after an underlying breach of the DFR has already been found. Nevertheless, this is a drastic and unacceptable misuse of the GC’s authority and one which aims to eviscerate unions by imposing what amounts to fines and penalties under the guise of a new burden shifting standard. While ostensibly aimed at overturning Alamillo Steel, the memo seriously undermines the underpinning of Vaca which bars apportionment of the employer’s contractual breach damages to a union.

New GC Memo 20-08 Deters Whistleblowers

June 30, 2020

On June 17, 2020, The Trump Board’s General Counsel Robb issued an interpretive memo to all Regional Directors giving them direction on how to handle certain testimony and audio recordings in a way that is obviously designed to deter employees and whistleblowers from coming forward against employers. A full copy of the memo is available here.

Testimony of Actor Former Supervisors and Agents

This section places new rules on receiving testimony from “actor supervisors” or “actor agents.” “Actors” refers to former supervisors who have been accused in the past of making unlawful statements or committing unlawful acts. When Board Agents receive testimony from such an Actor, the Region must now give the Employer an opportunity to be present during the testimony. Regional officers are also to apprise the Actor or their representative in advance that the Employer will be present for the testimony. This procedure could potentially deter witnesses from giving testimony. If the former supervisor does not want the Employer present, the Region is instructed to contact the Ethics Office for further guidance.

Recordings During Investigations

The second portion of this memo instruct agents to deter witnesses from submitting any audio or video recordings as evidence if the recordings are prohibited by the Federal Wiretap Act, i.e., where those being recorded may not have consented to the recording. While the Agent can still receive the recording, they must first advise the person of the repercussions involved and that they may be subject to prosecution or a civil claim if they made an unlawful recording. If the audio recording provides proof of an Unfair Labor Practice, Regions are instructed to notify the Employer of the recording and offer to play the recording for them before taking their Statement of Position.

These new guidelines will certainly limit important evidence from being submitted and will discourage whistleblowers from coming forward.

Board Announces Final Rule

March 31, 2020

Today, the NLRB announced its Final Rule regarding a variety of subjects including blocking charge policy, voluntary recognition, and Section 9(a) recognition in the construction industry.  While the Board characterized these changes to existing rules as “amendments [that] better protect employees’ statutory right of free choice on questions concerning representation”, Craig Becker, General Counsel of the AFL-CIO characterized them as a “perversion”.  We endorse Craig’s view.  Here is his more detailed statement of explanation for these changes:

Drastic limitation of blocking charge policy 

The Board modified, indeed, all but eliminated, its long-standing blocking charge policy under which allegations of serious unfair labor practices that render a fair election impossible would block the conduct of an election until the unlawful conduct was remedied. 

First, the Board wholly eliminated the application of the policy to most unfair labor practice charges.  The new rule provides that only charges “that allege violations of section 8(a)(1) and 8(a)(2) or section 8(b)(1)(A) of the Act and that challenge the circumstances surrounding the petition or the showing of interest submitted in support of the petition, or a charge is filed that alleges an employer has dominated a union in violation of section 8(a)(2) and seeks to disestablish a bargaining relationship” may “block” an election.

Second, even as to the narrow category of charges that can still “block” an election, the rule provides that the election should proceed with the ballots impounded for up to 60 days (and continuing if a complaint issues within that period).  Even if subsequent charges are filed, no matter how serious or of what type, the 60 days will not be extended.

Depriving voluntary recognition of protection

The Board re-imposed a rule derived from a decision of the Bush Board (Dana), subsequently overruled by the Obama Board that deprives voluntary recognition of protection against the filing of a decertification petition for a reasonable period of time to allow bargaining to be successful.  The new rule provides that no such protection shall exist after recognition and even during the term of a first contract, unless the employer posts a notice informing employees of the recognition and of their right to file a petition for an election to determine if they wish to be represented.  Employees have 45 days to file such a petition.  If no such petition is filed, the recognition will serve to bar a subsequent petition.

Imposing new evidentiary standard on conversion of 8(f) to 9(a) bargaining relationships in the construction industry.

Finally, the rule provides that voluntarily created bargaining relationship in the construction industry that were converted from 8(f) to 9(a) relationships “absent positive evidence that the union unequivocally demanded recognition as the section 9(a) exclusive bargaining representative of employees in an appropriate bargaining unit, and that the employer unequivocally accepted it as such, based on a contemporaneous showing of support from a majority of employees in an appropriate unit.  Collective bargaining agreement language, standing alone, will not be sufficient to provide the showing of majority support.”

Three Republican-Appointed White Men are Now Deciding your Rights on the Job

December 17, 2019

By Lynn Rhinehart and Celine McNicholas of the Economic Policy Institute

This overview is republished with permission.

Mid-December marked the end of Democratic National Labor Relations Board (NLRB) Member Lauren McFerran’s term. McFerran ended her term offering the lone dissenting voice in the Trump Board’s efforts to slow down union elections to give employers more time to campaign against the union, give employers the ability to make unilateral changes without bargaining with their workers’ union, weaken remedies when employers break the law, and more.

McFerran is the former Chief Labor Counsel for the Senate Committee on Health, Education, Labor, and Pensions (HELP Committee) and is widely respected by both labor and management. Her departure leaves a second open seat on the Board that the Trump administration is tasked with filling. However, the Trump administration has not yet acted to nominate McFerran for a second term, nor has it nominated a Democrat to fill the other vacant Democratic seat that has been open since August 2018. The failure of the Trump administration to act is not for lack of a qualified nominee with widespread support. Former deputy general counsel and longtime NLRB career attorney Jennifer Abruzzo has reportedly been under consideration.

As a result, the NLRB has only Republican appointees for the first time in its 85-year history, and the three Republicans are all white men—two lawyers who represented corporations before coming to the NLRB, and one former Republican congressional staffer. There is no Democratic appointee to offer alternative views on workers’ rights under the National Labor Relations Act (NLRA), or to issue dissenting opinions when the Trump Board goes off track. And there are no women or people of color participating in these decisions, even though women and people of color make up the majority of workers.

The U.S. Chamber of Commerce—the nation’s largest business lobby—is 10 for 10 in winning action on its top 10 “wish list” for the Trump board. Unfortunately, things are likely to get worse, not better. With no Democratic appointee there to provide an alternative or dissenting viewpoint on the Trump Board’s actions, we are likely to see a continued rollback of workers’ rights under this bedrock statute that, after all, is supposed to protect workers’ rights.

More details follow below.

Trump Board Shuts Out Free Speech in the Workplace

December 17, 2019

In 2015, the Obama Board issued its Banner Estrella Medical Center decision favoring the free speech rights of employees who are involved in workplace investigations.  In that case, the Board prohibited employers from adopting overly broad investigative confidentiality rules. If employees were required to keep quiet about an investigation, the employer had to prove on a case-by-case basis that the integrity of an investigation would be compromised. This week, in the decision of Apogee Retail LLC dba Unique Thrift Store, 368 NLRB No. 144, the Board overruled Banner Estrella, holding that ALL employer-imposed confidentiality rules are legal, as long as they are limited to the duration of the investigation. If brought before the NLRB, the Board would apply the Boeing analysis (regarding the validity of workplace rules) to decide whether the confidentiality rule interferes with Section 7 rights.  However, gag orders are now  presumptively lawful until decided otherwise.

Member McFerran, in one of her fiery final dissents describes the abhorrent side effects that could occur as a result of Apogee Retail: “The likely chilling side effect on workers – who will feel compelled to choose safe silence over risky speech – is both obvious and alarming. A victim of sexual harassment will risk being fired if she dares warn her coworkers or seeks help from an outside advocacy group. A union activist who believes she is being unfairly targeted  . . . will be left to wonder if asking for help from coworkers, consulting with the union, or even approaching the National Labor Relations Board during the course of the employer’s investigation will put her job at risk.”

Requiring workers to remain silent under a gag order will also inevitably silence victims.

Employers May Unilaterally Cease Checking Off and Remitting Dues upon the Expiration of a CBA

December 17, 2019

December 16, 2019 marked the last day of labor-friendly Member Lauren McFerran’s term on the NLRB. The Trump Board majority chose to mark it by issuing a string of decisions aimed at weakening Unions and collective bargaining, leaving McFerran as the sole dissenting member.

Yesterday, the Board declared that upon expiration of a collective bargaining agreement, “an employer has a statutory right to refuse to checkoff dues and remit them to a union until it agrees in a contract to waive that right.” The decision is Valley Hospital Medical Center, Inc. and Local Joint Executive Board of Las Vegas, Case Number 28-CA-213783 (Valley Hospital).

In this matter, the parties were still operating under the terms of a CBA which included a checkoff provision. The authorization form in the contract stated that dues would be deducted monthly “during the term of the Agreement.”  The Board held that the Company could unilaterally decide to cease dues check offs immediately after expiration of the contact, even though employee-signed payroll deduction forms state the dues authorization would remain in effect and irrevocable unless the employee revokes the deduction in writing.

This decision overrules the Obama Board’s decision in Lincoln Lutheran of Racine, which held for the past four (4) years that in most circumstances an employer’s statutory obligation to check off and remit union dues continues to be enforceable after a collective bargaining agreement that included a checkoff provision had expired.

As McFerran emphasized, allowing “unilateral changes in employees’ terms and conditions of employment [shows] little regard for the central statutory goal” of the National Labor Relations Act which is to encourage the practice and procedure of collective bargaining. Employers will undoubtedly add unilateral elimination of dues checkoff to their “economic arsenal” to weaken unions. 

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