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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.”

Trump Board Restores Arcane Rules Delaying NLRB Elections

December 17, 2019

Abruptly, on December 13, 2019, the Trump Board issued amendments to the rules governing representation cases, without any public input whatsoever. By way of contrast, the now nullified 2014 Obama Board amendments were issued after notice as well as several days of public hearings. Just to make matters worse, the Trump Board noted that while it had issued a request for information concerning the Obama Board’s reforms in December 2017 and received close to 7,000 submissions, the current majority expressly stated that “[n]one of the procedural changes that we make today are premised on the responses to the request for information.”   That just leaves us to guess at the motivation behind these changes and, if past behavior provides any predictability to the future, we can easily do so.

The Obama Board’s reforms were effective in reducing the time between petition and election while not otherwise resulting in any of the adverse consequences predicted by the management bar.  Nevertheless, the current majority has decided to nullify the reforms almost in their entirety.

The primary changes made to the rules are as follows:

  • Regional Directors are required to permit litigation of and to resolve all issues of eligibility and inclusion raised by any party prior to directing an election.

  • Regional Directors may not direct an election sooner than 20 business days after a decision and direction.

  • The filing of a timely request for review, defined as within 10 business days of the direction, will result in impounding of the ballots until the Board rules on the request.

  • A new requirement is imposed on the Petitioner to file and serve a response to the statement of position, due at noon three business days before the hearing.

  • Parties have a right to file post-hearing briefs five business days after the hearing.

  • Regional Directors’ “discretion to issue a Notice of Election subsequent to issuing a direction of election is emphasized.”

  • Parties are required to designate employees from within the unit as observers when possible and are only permitted to designate current, nonsupervisory employees.

  • Regional Directors may not issue a certification while a request for review is pending or while the time for filing such a request is still running.
  • Finally, virtually every time period is extended, including, but not limited to: the pre-election hearing extended to fourteen (14) business days after notice instead of eight calendar days; posting of the notice of petition five business days after service instead of two; statement of position eight business days after notice instead of one day before the hearing; provision of eligibility list five business days after direction instead of two. In addition, the standard for granting extensions was liberalized in all contexts.

In a parting dissent, Member McFerran wrote: “The primary effect of these changes will be to dramatically increase the timetable for conducting representation elections by imposing unnecessary delay at each stage of the representation case process.”

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. 

Employers Get Off the Hook for Refusing to Provide Information

December 16, 2019

In Palace Station Hotel & Casino, 368 NLRB No. 148 (December 16, 2019), the Board altered two aspects of an employer's duty to respond to union information requests under Section 8(a)(5) of the Act.  

First, the Board held that “customer complaints about unit employees are not presumptively relevant,” reasoning that “customer complaints are not wages, benefits, or other terms and conditions of employment, and they do not, standing alone, directly concern wages, benefits, or other terms and conditions of employment.” [The Board did acknowledge that a union's request for “customer complaints that resulted in discipline” would be presumptively relevant.] On this basis, the Board overruled Mercedes-Benz of San Diego, 357 NLRB No. 114 (2011).

Second, the Board altered its remedial approach in situations where an employer both refuses to bargain to test the union's certification and raises a confidentiality defense to a union information request. As a general matter, an employer who raises a confidentiality defense is required to engage in accommodative bargaining with the union. Now, the Board will permit the employer to preserve its right to seek an accommodation with the union after the test of certification case is resolved, rather than requiring the employer to choose at the outset between the exclusive alternatives of either testing certification or seeking an accommodation. The Board also stated that it will apply this same remedial approach to other circumstances where bargaining is required, such as an employer's claim that an information request is unduly burdensome or overly broad.

Member McFerran dissented with regard to both aspects of the Board's decision. On the first point, Member McFerran stated that “the rationale underlying th[e] conclusion [that customer complaints are presumptively relevant] is self-evident: customer complaints frequently have adverse consequences for employees and, more broadly, may inform a union's bargaining position on a range of related subjects.” On the second point, Member McFerran noted that “the majority's scheme tends to frustrate collective bargaining by diminishing employer's disincentives to challenging Board certifications,” and by “mak[ing] it remarkably easy for employers to preserve potential defenses to information requests.”

Joint Employer Expansion Comes to an End

December 12, 2019

As many of you know, the Obama Board fought mightily toward the end of its term to expand upon the definition of “joint employer” under Board law in order to bring some modicum of justice and workplace equity to those millions of American workers employed in largely minimum wage jobs for franchisees under deplorable working conditions.  That effort, identified largely with McDonald’s workers, has now been dealt a knockout punch by the Trump Board, after a raucous and hard fought battle. 

One of the most important efforts in this fight was the effort to hold McDonald’s Corporation responsible, as a joint employer with the franchisee, for the labor law violations committed directly by the franchisee. The evidence had proven that McDonald’s was indeed responsible for systemic violations resulting from its direction to its franchisees.  Nonetheless, in this last round, the Trump Board ordered an ALJ to approve a settlement that, among other features, let McDonald’s itself off the hook for remedying these systemic violations generated by McDonald’s own hostile, top-down response to fast food workers’ organizing and the “Fight for Fifteen” campaign.

Board Abandons 40-Year Precedent on Unilateral Changes

September 10, 2019

In a decision issued on September 10, the Board abandoned forty (40) years of precedent by adopting what it calls the “contract coverage” standard for determining whether an employer’s unilateral change in a term or condition of employment violates the Act. In doing so, the Board abandoned the “clear and unmistakable waiver” standard. The decision is M.V. Transportation, Inc. (28-CA-173726; 368 NLRB No. 66).

Under the time-honored “clear and unmistakable waiver” standard, the Board would find an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically permitted the employer to make the change.  Under the “contract coverage” standard, the Board has turned “on a dime” and will now examine the language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the scope of contractual language granting the employer the right to act unilaterally.  In other words, if the change could even be arguably covered by the management rights clause, the Board will permit the change. If it is, the employer will not have violated the Act by making the change without bargaining. If there is no way the agreement could arguably cover the unilateral change, then, and only then, will the employer have violated the Act, but it could still wiggle out of a violation by demonstrating a union has waived its right to bargain over the change or that it was privileged to act unilaterally for some other reason.

This is another attack on a union’s ability to hold employers to their bargaining obligations under the Act and a significant step in making the Act a useless tool for unions seeking to enforce the duty of an employer to bargain in good faith.   

Board Allows Employers to Ban Union Organizing Activities Even When Others are Not Allowed Access

September 10, 2019

On September 6, 2019, the Board took another giant step in the direction of dismantling employee rights by issuing a decision strengthening the rights of employers to lawfully deny nonemployee union agents access to an employer’s property to solicit its customers to boycott its business. 

In Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in relevant part 242 F.3d 682 (6th Cir. 2001), the Board interpreted existing law to require employers to grant access to nonemployee union agents for any purpose if the employer has allowed “substantial civic, charitable, and promotional activities” by other nonemployees in the past. Applying Sandusky Mall here, the ALJ found that the employer discriminated against the union by permitting a variety of charitable and civic organizations, such as the Girl Scouts and the Salvation Army, to fundraise on its property while ejecting the nonemployee union agent who entered its property to solicit the employer’s customers to boycott its store.  The Board overruled its ALJ.

Now, under this new decision (Kroger), to establish that a denial of access to nonemployee union agents violated the Act, a union must show that an employer denied access to nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. Thus, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Additionally, an employer may ban nonemployee access for union organizational activities if it also bans comparable organizational activities by groups other than unions.

Once again, the voices of working men and women are stifled by the Trump Anti-Labor Relations Board.

Misclassifying Workers as Independent Contractors is not a Separate Violation of the Act

August 30, 2019

In Velox Express, Inc., 15-CA-184006, 368 NLRB No. 61 (2019) the Trump Anti-Labor Relations Board has decided that employers do not violate the NLRA solely by misclassifying employees as independent contractors. The Board majority held that the communication of an employer’s opinion to its workers that they are independent contractors does not, standing alone, violate the NLRA if that opinion turns out to be mistaken. According to the decision, such communication does not inherently threaten those employees with termination or other adverse action if they engage in activities protected by the NLRA, nor does it communicate that it would be futile for them to engage in such activities.

In this latest dismantling of worker protections, the Board applied its recent decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), to find that the workers were employees, not independent contractors, and thus protected by the NLRA. Based on that determination, it held that the employer violated the NLRA when it discharged one of these employees for bringing to management’s attention group complaints about the way the employer was treating its workers. The Board majority held, however, that the employer’s misclassification of its employees as independent contractors was not a separate violation. 

The Trump appointees, Ring, Kaplan and Emanuel came up with this nonsense. Lone Democrat Lauren McFerran dissented from the portion of the decision holding that misclassification is not a separate violation. 

NLRB Decides that Employers Can Limit Protected Activity by Simply Revising the Agreement in Response

August 15, 2019

The Trump Board recently ruled in Cordia Restaurants Inc. that employers can change mandatory arbitration agreements after being sued in order to bar workers from opting in to class actions. If that is not egregious enough, employers can also threaten to fire those who refuse to sign the revised arbitration agreements.

In dissent, Member McFerran states, “Under long-established precedent, an employer violates Section 8(a)(1) of the National Labor Relations Act when it imposes a new rule on employees in response to their protected concerted activity-even if the rule would otherwise be lawful.”  While mandating arbitrations is valid under the Supreme Court’s decision in Epic Systems, McFerran’s position is that doing so in response to protected concerted activity is a violation. 

This new decision means that employers cannot take adverse action against employees for participating in protected concerted activity such as discussing a collective action; however, it is apparently legal for employers to amend an arbitration agreement to prevent employees from opting-in, then threaten to discharge anyone who refuses to sign the newly revised agreement. In this matter, two (2) employees refused to sign the revised agreement and were lawfully terminated.

Another in an increasingly long line of disgraceful departures from the policies of the Act.

NLRB Allows Employers to Hand Out Decertification Petitions

August 6, 2019

In 2016, a Union represented employee of Sears was approached by her coworker for advice who stated he was stressed and confused about ongoing Union negotiations. The coworker, along with two (2) other employees, suffered from autism. The employee who had been approached for advice apprised management of this conversation and asked if there was anything Sears could do to “protect” its three (3) employees with autism who were “overwhelmed by all the information about the Union.” Management’s response was to provide her with a decertification form, telling her that if enough of them signed it, they could be rid of the Union. The employee, who had always been opposed to the Union, distributed the form to 7-8 coworkers, telling them it would help protect the three (3) associates with autism and that if they wanted to sign they could. Sears withdrew recognition from the Union shortly after its certification year ended based on the petitions which were signed approximately three weeks before the end of the certification year.

On July 30, 2019, the Trump Board found that Sears violated the Act when it relied on decertification petitions signed by employees during the certification year, but, in another blow to labor, found it lawful for the Store Manager to have distributed the petition in response to a vague question from an employee regarding helping her fellow coworkers with autism. This decision signals a change in that employers seemingly can lead a decertification drive by distributing a decertification petition – so long as it is done in response to a question that does not even directly address the issue of removing the Union.

This is one of many “shots across the bow” Unions are taking from the Trump Board.

NLRB General Counsel Signals Change in the Law of Union Security Obligations

August 2, 2019

It is no mystery the present General Counsel of the National Labor Relations Board (“NLRB”) is not a friend of organized labor.  There is also little question that the General Counsel is attempting to find any legal means by which the finances of labor organizations can be detrimentally impacted.

In a string of recent ”GC Memoranda” – documents in which the General Counsel instructs the NLRB’s Regional Offices on how to proceed with specific cases -- the General Counsel rolled out a road map on how he will attempt to achieve this. 

First, it is apparent that the General Counsel is taking the position that – under the Board’s California Saw and Knife decision from the 1990’s (dealing with the implementation of Beck and the notices which have to be given to non-members) – the initial notice provided by a Union to a new employee (under a union security clause) must include the actual percentage of regular dues the employee will pay if they assert objector status.  Thus, if your union’s Beck calculations show that ninety five percent (95%) of dues are chargeable, your initial notice to the new employee must “prominently” advise the employee of that five percent (5%) “savings” on regular dues.  Absent that figure, we can expect the NLRB to issue a complaint against any union issuing a non-conforming notice.

Similarly, the General Counsel has announced that it will be going after unions whose Dues Deduction/Authorization Forms either do not clearly advise the employee of when the authorization may be cancelled or do not allow cancellation at any time prior to the expiration of the existing collective bargaining agreement. Therefore, we strongly recommend that your union check the language on its Dues Deduction and Authorization Forms to make sure that (A) they clearly state when the employee may cancel the Authorization Form and (B) clearly state that the Authorization Form expires as of the same date of the existing collective bargaining agreement.

We realize this may be a big change for some of you so please be sure to consult with legal counsel before implementing these changes.

NLRB Changes Rules on Employer Withdrawal of Recognition

August 2, 2019

In a recent decision entitled Johnson Controls, the National Labor Relations Board (“NLRB”) significantly changed the rules regarding lawful withdrawal of recognition of a union.  Before Johnson Controls, rules required an employer to have “objective proof” that the Union no longer represented a majority of the employer’s employees.  Likewise, prior Board law held that if the Union regained majority status after the employer notification, the employer acted at its peril by refusing to bargain with the Union which remained the legal certified bargaining representative for the employees. 

In Johnson Controls, the Trump Board completely upended the above legal framework.  Now, an employer is privileged to withdraw recognition from its union counterpart at any time in the ninety (90) days before expiration of the parties’ collective bargaining agreement.  There is no longer any apparent requirement that the employer have any objective basis to support the withdrawal.

Should an employer withdraw recognition, the union can only restore its status as the recognized bargaining representative if it files a petition for an election with the NLRB.  Furthermore, the election petition must be filed no later than forty five (45) calendar days after the employer’s notice of withdrawal of recognition from the union. 

If the union fails to file the election petition within the forty five (45) day window, Johnson Controls states that the union has lost recognition and no longer represents the bargaining unit.

This is just another example of the anti-labor bias of the Trump Board.   

NLRB Bans Union Representatives from Discussing Union Matters with Workers in a Public Cafeteria

June 27, 2019

Longstanding Board law was overturned this month when the Trump Board held in UPMC Presbyterian Shadyside and SEIU (UPMC Shadyside), that an employer may prohibit non-employee union representatives from engaging in organizational activity in a public space on their property.

In 2013, two union representatives met with a group of six union members in a hospital cafeteria open to the public during their lunch breaks, ate lunch, and discussed their union organizing campaign. Union flyers and pins were displayed on the tables. One off duty employee passed out flyers. Security received a complaint from a manager and an employee that non-employees were soliciting in the cafeteria. The employees were forced to show identification and security called the police to have the Union representatives removed.

Past precedent has held that employers cannot restrict public cafeteria access for non-employee union organizers who engage in solicitation and other organizational activities if they are not being disruptive. This overlaps with the standard set in the 1956 Supreme Court decision, NLRB v. Babcock & Wilcox Co. disallowing union discrimination if other groups are allowed access. In UPMC Shadyside, the promotional activities were not disruptive by any means, but the hospital alleged to have a no solicitation policy that applied to all non-employees, therefore the discrimination exception did not apply.

UPMC Shadyside broke decades of precedent by siding with the employer and allowing them to ban non-employee Union representatives from having promotional meetings in a public cafeteria. This decision is doubtless intended to have a chilling effect on Union efforts to organize in areas generally open to the public if the employer has a strict no solicitation policy. Silently passing out flyers could be seen to constitute solicitation.  

If you are confronted with this situation, be sure and check to see if the Employer allows any form of solicitation, e.g., sale of Girl Scout cookies, church raffle tickets, school fundraisers, etc., in the area you are in before you attempt to engage in organizational activities.

Board Tightens Precedent on Threats to Picket

March 18, 2019

The NLRB has held that picketing notices sent by unions to neutral employers about planned picketing actions at the neutral’s work site violate the NLRA, if the notice fails to indicate the picketing would conform to the Moore Dry Dock standards and established precedent.

In this matter, unionized electrical workers performed services for a primary employer at the Las Vegas Convention Center and for several neutral employers at the same work site. Prior to picketing, the union sent a notice to a neutral employer about picketing and asked for their cooperation during the strike. The primary employer filed ULP charges against the Union for coercion in that the union’s notice did not conform to the Moore Dry Dock standards. Member McFerran criticized the board’s adherence to “formalistic rules” that ignore the realities of labor relations.

This case is a good reminder that letters sent to neutral employers should first be reviewed by counsel and should normally not mention picketing, as compared to hard-billing, which is clearly protected.

Board Favors Non-Member Objectors Once Again

March 4, 2019

United Nurses & Allied Professionals (Kent Hospital), is the Board’s latest decision discouraging union membership by enhancing the rights of non-member objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988).  According to this new decision, issued March 1, non-member objectors cannot be compelled to pay for union lobbying expenses. The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on Beck, and related judicial decisions, holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.

The Board majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and non-chargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the Board held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.

Once again, the Board is showing its open and blatant hostility toward unions by adopting this enlarged standard under Beck and forcing unions, in many cases, to conduct independent audits and thereby incur additional unnecessary expense. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Lone labor appointee Member Lauren McFerran dissented.

Board Leaves Employees Out in the Cold

February 27, 2019

In Recology Hay Road, the Board tightened the standards for including subsequently added job classifications into an existing bargaining unit by way of its accretion doctrine.  This case represents a departure from long standing interpretations given by the Board in subsequent accretion cases relying upon Safeway Stores, Inc., the leading 1981 decision on the issue. 

Overruling the Regional Director, the Board found that the “heavy burden” of establishing an accretion was not met when the Union claimed that two (2) new positions within a newly added job classification were added to a forty (40) plus member bargaining unit.  The highly questionable reasoning offered by the Board was that there was “at least some separate identity” between the new job classification and the remaining bargaining unit jobs.  There was insufficient evidence that the members of the new job classification “share an overwhelming community of interest” with the remaining members of the bargaining unit, there was no evidence of interchange (of course the new job had just been created so that was self-evident), and the working conditions were not “almost identical,” as the Regional Director had concluded.

Of course, this leaves an unrepresented residual unit which the employer will probably take advantage of unless the union decides to file for them as a separate unit.  No doubt, the employer will then claim they are supervisors. This is such a travesty of NLRA goals and precedent.   

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion.  Lone labor Member Lauren McFerran did not participate in the decision.  

Board Reverses Holding: Franchisees are no Longer Statutory Employees

January 25, 2019

In SuperShuttle DFW, Inc., the Board reversed a prior Obama-Board ruling by holding that certain “franchisees” are not statutory employees under the National Labor Relations Act (the Act), but rather independent contractors excluded from the Act’s coverage. The case involved shuttle van drivers for SuperShuttle at Dallas-Fort Worth Airport.  This reversal was not unexpected, given the Trump-Board’s evident hostility toward any expansion of workers’ rights.

The Board found these workers were, in fact, “franchisees” who leased or owned their work vans.  Their method of compensation and nearly unfettered control over their own daily work schedules and working conditions provided these “franchisees” with significant entrepreneurial opportunity for economic gain.  This factor, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the Board finding that these “franchisees” are not employees under the Act.  The decision affirmed the Acting Regional Director’s finding that the “franchisees” are independent contractors.

The decision overrules FedEx Home Delivery, a 2014 NLRB decision that modified the applicable test for determining independent contractor status by severely limiting the significance of a worker’s entrepreneurial opportunity for economic gain.

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion.  Lone labor Member Lauren McFerran dissented.

DFR Memo

September 17, 2018

The Trump-appointed General Counsel Peter Robb of the NLRB advised NLRB Regional Directors around the country to take a new and more aggressive approach in investigating and responding to certain types of claims by employees against Unions who represent them in connection with grievance processing. A full copy of the memo is available here.

This is a quick summary of the changes they have been told to put into effect:

Unions whose negligence results in a grievance not being pursued, or being lost, because time limits were missed will no longer be able to defend these mistakes based upon ordinary negligence, without any showing of a bad faith motive. The best example of this type of situation is where an employee talks to a Union steward about filing a grievance, the steward agrees to get the grievance on file but forgets to do so.  Subsequently, the grievance cannot be pursued because the time limit has run. Even though there is absolutely no indication the steward or anybody else was trying to undermine the employee’s interests, and all the evidence shows that the only reason the grievance was not pursued in a timely way is that the steward forgot, this may not work to get the Union off the hook.  Now, UNLESS the Union is able to show that it has systems in place that are reasonably designed to guard against something like this happening, the Regions have been instructed to issue a complaint.  THIS MEANS EVERY LOCAL UNION SHOULD HAVE A PROCEDURE IN PLACE TO LOG EVERY GRIEVANCE THAT IS FILED/REQUESTED AND TO MAKE SURE THE GRIEVANCE IS PROCESSED IN A TIMELY MANNER.

Also, communications by a Union with an employee about his or her grievance or grievance-related issues will be more strictly scrutinized. The Regions have been instructed that a Union’s failure to respond to inquiries from employees about the status of their cases, or failure to provide employees with documents they request that relate to their grievances, can be violations of the duty of fair representation.  This is a clear departure from many years of Supreme Court and NLRB precedent.  Nevertheless, the General Counsel states that a Union’s failure to communicate with a member about a grievance will be found to constitute a violation, even if the Union has decided not to pursue the grievance and that decision is found to be a proper exercise of the Union’s discretion.

Many of our Union clients could face serious legal jeopardy based upon these new initiatives from the NLRB General Counsel.  These new initiatives should not be minimized.  We strongly urge you to take these concerns seriously and to establish systems and procedures that will protect your Local from the types of attacks the General Counsel is seeking to lead.  We remain available to work with you to establish and communicate such systems and procedures.



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