Significant ULP Cases in Jayme L. Sophir. I have set forth below the significant ULP cases decided by the Board in 2017.

Transcription

1 Significant ULP Cases in 2017 By Jayme L. Sophir I have set forth below the significant ULP cases decided by the Board in LEAD CASES UPMC, 365 NLRB No. 153 (Dec. 11, 2017). The Board majority (Miscimarra, Kaplan, and Emanuel) found that the ALJ had properly accepted a consent settlement offer to which the General Counsel and the Charging Party both objected, a so-called unilateral settlement. In so finding, the Board majority overturned United States Postal Service, 364 NLRB No. 116 (Aug. 27, 2016), and held that the appropriate test for such settlements was the reasonableness standard as set forth in Independent Stave, 287 NLRB 740 (1987). The Employer was alleged to be a single employer with a subsidiary hospital that the ALJ already found had committed numerous unfair labor practices. To avoid litigating the single-employer issue, the Employer offered to guarantee its subsidiary s performance of any remedial orders that survive the exceptions and appeal process in exchange for dismissing the single-employer allegation. Both the Charging Party and the General Counsel objected, arguing that accepting the offer would deprive them of a finding that the Employer was directly liable for the unfair labor practices of its subsidiary, but the ALJ accepted the offer. Under the standard set by Postal Service, an ALJ cannot accept a respondent s offered settlement terms over the objection of the General Counsel and charging party unless the offer constitutes a full remedy for all of the violations of the complaint. The Board majority here disagreed with this rule. The Board majority concluded that accepting a reasonable settlement early in litigation would advance important interests, such as promoting industrial peace and conserving Board resources. The Board majority also reasoned that the Postal Service rule incorrectly rested on the faulty assumption that the General Counsel is sure to prevail, and found that reasonable settlement terms reached at an early stage even if the terms are less than complete would often leave parties in a Ms. Sophir is Associate General Counsel in the Division of Advice, National Labor Relations Board. She would like to acknowledge the contributions of Jonathan Psotka and Jeremy Belin of the Division of Advice in the preparation of this paper. 1

2 better position than would result from a Board adjudication, considering the substantial burdens and time involved in Board proceedings. Instead, the Board majority applied the Independent Stave multi-factor test to determine whether the consent settlement was acceptable: (1) whether the parties have agreed to be bound by the settlement and the views of the General Counsel; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; (4) whether the respondent has engaged in a history of violations of the Act or breached previous settlement agreements. Applying this standard retroactively, the Board majority determined that factor one was inconclusive, since the Employer agreed to be bound, but the Charging Party did not. The Board majority also noted that while the General Counsel s opposition was important, it is not determinative under Independent Stave. The Board majority next found that factors three and four favored accepting the settlement, as there were no allegations of fraud and no evidence that the Employer had a history of violating the Act. Finally, the Board determined that factor two also favored acceptance, since the settlement fulfilled the practical aim of the single-employer allegation, the Employer was not alleged to have directly violated the Act in any way, the risks inherent in litigation at this stage were substantial, and the settlement greatly expedited the resolution of the proceeding. The dissents (Pearce and McFerran) both argued that Independent Stave is inapplicable to consent orders, since it involved the Board s review of non-board settlements, that is, settlements between the charging and charged parties. The justifications for accepting a less-than-full remedy in those cases do not apply in a unilateral settlement, since no private dispute resolution or litigation risk-based compromises have occurred when only one party agrees. The dissents also criticized the manner in which the majority had overturned precedent without asking for public comment or briefing. The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). In this rules case, the Board majority (Miscimarra, Kaplan, and Emanuel) overturned the reasonably construe prong of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and articulated a new standard for determining the legality of work rules that implicate Section 7 rights. They then determined that no photography rules and civility rules will generally not be found unlawful in the future. In this case, the Employer maintained rules restricting photography and camera-enabled electronic devices in its facilities, but the Employer s guards photographed employees engaged in union activity and told those employees that 2

3 security was documenting all union activity. The Union challenged the guard s photography, as well as the rule preventing employees from engaging in photography. The full Board unanimously found that the Employer violated Section 8(a)(1) by committing unlawful surveillance when the guard photographed employees engaged in Union activity, and created the impression of surveillance when the guard told the employees he had been directed to document all union activity. However, the Board majority, disagreeing with the ALJ, found that the Employer s photography rule was lawful. Under Lutheran Heritage and subsequent Board law, the mere maintenance of a work rule was considered unlawful if employees would reasonably construe the rule s language to prohibit Section 7 activity, if the rule s language explicitly restricted Section 7 activity, if the rule s language was facially neutral but the rule was promulgated in response to union activity, or if a facially neutral work rule had been applied to restrict Section 7 activity. Here, the Board majority noted that the Employer s photography rule did not explicitly restrict Section 7 activity, nor had it been promulgated in response to or applied to Section 7 activity. Thus, the issue presented was whether the Employer s rule could be reasonably construed to prohibit Section 7 activity. However, the Board majority determined that the reasonably construe prong of Lutheran Heritage contained multiple defects, and should be overruled. The problems with the reasonably construe prong, according to the majority, were that it was difficult to apply, too simplistic to account for differences between industries, yielded unpredictable and arbitrary results, and required work rules to be impossibly unambiguous. As an example of the unpredictable nature of the reasonably construe prong, the majority noted that the Board had found lawful a rule prohibiting abusive or threatening language but found unlawful a rule prohibiting loud, abusive, or foul language. Most importantly, however, the Board majority found that the reasonably construe prong ignored Supreme Court and Board precedent by not taking into account the business justifications for the rule in question. The majority noted that the Court in Republic Aviation v. NLRB, 324 U.S. 793 (1945), had found that it is the duty of the Board to work out an adjustment between the undisputed right of self-organization assured to employees under the Wagner Act and the equally undisputed right of employers to maintain discipline in their establishments. The majority also pointed out that the Board has indeed conducted this balancing in the case of no-solicitation rules (lawful on working time but not nonworking time), noaccess rules, and in just cause rules. 3

4 Accordingly, the majority overturned Lutheran Heritage, and declared a new standard which better balances the rights of employees and the rights of employers. First, the Board will determine whether a rule, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights. This analysis is still an objective inquiry performed from the perspective of employees. However, ambiguity in the rules will no longer be construed against the employer, since the issue is not whether a rule could be interpreted as restricting NLRA rights, but reasonably would be interpreted as restricting NLRA rights. If the rule would not reasonably be interpreted as restricting NLRA rights, the rule is lawful. If, though, there is a potential adverse impact on NLRA rights, the Board will next evaluate the nature and extent of the potential impact on NLRA rights and the legitimate justifications associated with the rule. In finding the proper balance between asserted business justifications and the potential invasion of employee rights, the Board may differentiate among different types of NLRA-protected activities some of which might be central to the Act and others more peripheral and consider whether the risk of intruding on NLRA rights, while present, is comparatively slight. The Board may also distinguish different types of business justifications, some of which might be directly relevant to the business and others of which might be more peripherally important. The Board may also consider any evidence regarding a particular rule s impact on protected rights, and may draw distinctions between different industries and work settings. In the interest of stability and clarity, the Board majority also created three categories that every type of rule will be listed under going forward. These categories are not diagnostic the Board itself will determine in which category a rule belongs but rather are intended as guides for practitioners, stakeholders, and the Regions. As the Board considers more types of rules in the future, they will be added to one of the three categories. Category One includes types of rules that are generally lawful, either because they would not be reasonably interpreted as restricting NLRA rights, or because whatever limited restrictions they do pose always will be outweighed by legitimate business justifications. As an example, the Board majority noted that civility rules or rules fostering harmonious interactions fall under this category. Category Two includes types of rules where individualized scrutiny is warranted, and the legality of any given rule of these types will depend on the particulars of the case. Category Three includes rules that are generally unlawful to maintain, because they prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights will always outweigh business justifications associated with the rule. An example of a type of rule in this category is a rule that prohibits employees from discussing wages or benefits with one another. 4

5 In addition, the Board majority was careful to note that these categories applied to the mere maintenance of work rules, and that the application of a rule to NLRA-protected activity could still be unlawful, even if the rule applied were otherwise in the first category Applying its new standard retroactively to the Employer s photography rule here, the Board majority found that while the photography rule could reasonably be interpreted to restrict some forms of protected concerted activity, such as taking pictures of union protests to publicize those protests, the restriction on photography would not limit the union protests themselves. Moreover, the vast majority of photographs are not protected by the Act. Thus, the Board majority found the impact on NLRA rights to be slight. On the other hand, the business justifications for such a rule are significant, including the protection of proprietary information, personally identifiable information, and in the case of the Employer, national security. Therefore, the Board found the rule lawful, and put photography rules generally into Category 1. In separate dissents, Members Pearce and McFerran both strongly criticized the process by which the Board majority had reached its new standard. Specifically, they criticized the fact that the parties did not ask for and were not given the opportunity to brief a change in standard, and that the public was not consulted and amici briefs were not requested. The sudden change in standard was also criticized as being unwarranted given that the Lutheran Heritage standard had stood for thirteen years and been upheld by every court to consider the matter. The dissents also attacked the new rule as being more complicated and less predictable than the old standard. Finally, Member Pearce criticized the new standard as a how-to manual for employers intent on stifling protected concerted activity before it begins, arguing that overbroad rules can have a coercive impact as potent as outright threats of discharge. Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co., 365 NLRB No. 156 (Dec. 14, 2017). The Board (Miscimarra, Pearce, McFerran, Kaplan, and Emanuel) unanimously agreed with the ALJ that the Employers were joint employers, and that seven joint employees had been unlawfully discharged after they engaged in a work stoppage based on concerns about wages, benefits, and workplace safety. In reaching that conclusion, though, the Board majority (Miscimarra, Kaplan, and Emanuel) found that the Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (Aug. 27, 2015), joint-employer test applied by the ALJ was wrongly decided, and overturned it. 5

6 Employees of the Employers shared the same 401(k) and health plans and the same workers compensation policy, attended common mandatory training sessions and corporate meetings, and shared common employment policies. Five employees of one Employer and two employees of the other Employer joined together and engaged in protected concerted activity over a variety of workplace concerns. All seven were discharged by both Employers Corporate Secretaries, who happened to be the same person. In its decision, the Board majority ruled that it would not here apply Browning-Ferris, but would instead revert to the joint-employer standard that existed prior to that case. According to the majority, Browning-Ferris had improperly expanded joint-employer liability to include cases where an employer had merely reserved the right of control without ever exercising it, where an employer had only exercised indirect control, and where control was only limited and routine in nature. The majority criticized this expansion as going beyond the common law and thus beyond the Board s statutory authority; in particular, the majority concluded that the common law required at least some direct and immediate control, even where indirect-control factors are deemed probative. The majority also refuted the Browning-Ferris majority s claim that the modern economy warranted such changes. In addition, the majority found that the Browning-Ferris standard was vague and unpredictable, and would entangle many unsuspecting employers in litigation, bargaining obligations, and secondary economic coercion. The majority then described the wide-ranging negative effects of Browning-Ferris on contractors, successorship principles, franchising agreements and trademarks, parent-subsidiary relationships, and even existing bargaining relationships. Thus, the Board majority overturned Browning-Ferris and returned to the prior joint-employer standard, where only direct and immediate control of the terms and conditions of employment will render entities joint employers. While evidence of indirect control or contractually reserved authority can be probative in a jointemployer case, it is only relevant to the extent that it supplements and reinforces evidence of direct control. Applying the new standard retroactively, the Board majority found substantial evidence that the Employers exercised joint control over essential employment terms, the control was direct and immediate, and it was not limited or routine in nature. Thus, the Board found the Employers to be joint employers, and thus jointly liable for the violations of the NLRA. The dissent (Pearce and McFerran) argued that since the Employers were also clearly single employers (a conclusion the majority did not pass on) and because they would have been joint employers under either the new or old standard, the issue of which standard to use was not properly reached. The dissent also argued 6

7 that Browning-Ferris was a measured, common-law based restoration of earlier Board precedent; the majority s depiction of Browning-Ferris s practical consequences was wildly off base ; and the majority s approach could not be reconciled with agency principles and was contrary to the goals of Federal labor law. Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017). The Board majority (Miscimarra, Kaplan, and Emanuel), reversing the ALJ and overturning E.I. de Pont de Nemours, 364 NLRB No. 113 (Aug. 26, 2016), held that post-contract unilateral changes in terms and conditions of employment that are in keeping with past practice are not changes requiring bargaining under Section 8(d). The Employer and Union had signed a collective-bargaining agreement that incorporated the plan documents of the health benefit plan the Employer offered all its employees, unit and non-unit alike. Under those plan documents, the Employer maintained total discretion to amend the plan, including eliminating benefits. Every fall for eleven years, the Employer had accordingly amended the plan, usually to increase premiums. As the contract approached its expiration, the Employer s discretion over the health plan became a point of contention, and the Union demanded fixed benefits for the life of the new contract. The Employer refused, and the old contract expired without a new one to take its place. When fall arrived, the Employer announced new changes to the health plan, specifically, an expansion of its wellness reward and a conversion of a medical insurance plan to a health savings account, and implemented them soon after, though the parties were not at impasse. The Union filed a charge with the Board. Generally, an employer may not change a term and condition of employment for its represented employees unless it has given their bargaining representative notice and an opportunity to bargain about the proposed change. However, under the concept of the dynamic status quo, regularized past practices, like an annual cost of living pay increase, may be implemented by the employer unilaterally, though they are still subject to bargaining upon the union s request. In DuPont, the Board held that whenever an employer s past practice arose under a contract provision that permitted the employer to act unilaterally, as opposed to arising independent of any contract, the past practice was treated as if it never existed when the CBA expired. Here, the Board majority disagreed with DuPont, arguing that the Board and Supreme Court in the past had never differentiated between past practices that arose under a CBA and those that had not. Thus, citing NLRB v. Katz, 369 U.S. 736 (1962), the Board majority enunciated what it called the pre-dupont rule: A past practice, whether it developed under a collective-bargaining agreement or not, is a 7

8 term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. The Board also pointed out that, although a contractual management-rights clause does not survive contract expiration, a past practice developed pursuant to the clause does survive. Applying the rule retroactively to this case, the Board majority found that the Employer had a past practice of modifying its health plan every fall for eleven years to increase premiums and alter benefits, and that the annual changes did not materially vary in kind or degree from year to year. Specifically, the Board majority found that all the changes were typical of the changes one regularly sees from year to year in cafeteria-style benefit plans. The most recent changes were of a piece. Accordingly, there was no violation. Member Kaplan, in his concurrence, suggested that had the Employer not altered the health plan for unit employees in the same manner it altered the plan for non-unit employees, it would likely have been a change in the status quo and a violation of the Act. In dissent, Members Pearce and McFerran criticized the Board s failure to provide notice and an opportunity for briefing on this rule change, and argued that the Supreme Court in Katz had forbidden the unilateral continuation of past practices that involve significant employer discretion. 2. Section 8(a)(1) a. Union Insignia In-N-Out Burger, Inc., 365 NLRB No. 39 (Mar. 21, 2017). The full panel (Miscimarra, Pearce, and McFerran), affirming the ALJ, found that the Employer violated Section 8(a)(1) by maintaining a rule that prohibited the wearing of unauthorized buttons or insignia and by instructing an employee to remove his Fight for Fifteen button. The full panel, reversing the ALJ, additionally ordered a nationwide remedy for the Employer s 300-plus restaurants, as the rule was in use at all stores. The panel majority (Pearce and McFerran), reversing the ALJ, additionally found that the Employer violated Section 8(a)(1) when a supervisor told an employee that a Fight for Fifteen button was not part of the uniform. Acting Chairman Miscimarra would find this allegation cumulative in that it did not materially affect the remedy and therefore declined to pass on it. A different panel majority (Miscimarra and McFerran) disavowed the ALJ s comments about the rigorous nature of the Employer s business practices, the Employer s motives behind the ban, and the scope of what might constitute a legitimate public image justification. 8

9 The Employer maintained a policy banning any type of pin or stickers. In 2015, employees at the Employer s store in Austin, Texas participated in the national Fight for Fifteen campaign, which was focused on raising wages for fast food workers to fifteen dollars per hour. As part of this campaign, some employees began wearing Fight for Fifteen pins on their company uniforms. A supervisor at the Austin store told an employee to remove his Fight for Fifteen button, pursuant to the company s no-pins policy. Later, when another employee asked a supervisor whether he could wear a Fight for Fifteen pin, the supervisor told him that it was not part of the uniform. The ALJ found, and the Board panel agreed, that the Employer could not point to any special circumstances that justified its pins policy. The Employer had argued that pins detracted from its public image that included a historic logo and menu, no franchises, white uniforms, and a sparkling clean image. The ALJ noted that the claim that the union s pins detracted from the sparkling clean image was undercut by the fact that the Employer regularly provided employees with pins related to charity or wishing a merry Christmas. Such pins also undercut the argument that the Fight for Fifteen pins would have an effect on food safety. In addition, Acting Chairman Miscimarra disclaimed the ALJ s suggestion that only a sophisticated or novel public image could amount to a special circumstance that justifies a ban on employee buttons. Miscimarra noted that it was entirely possible that a conventional fast food establishment could have a public image that justified such a ban. Acting Chairman Miscimarra also noted his belief that an employer could potentially provide buttons recognizing certain holidays or charities, while precluding union buttons, without diminishing the importance of its public image. b. Unlawful Interrogation RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017). The panel majority (Pearce and McFerran), affirming the ALJ, found that the Employer violated Section 8(a)(1) by interrogating an employee about his union affiliation via text message, and violated Section 8(a)(1) and (3) by discharging the employee. During an organizing campaign at a construction company, an employee who had been on leave texted his supervisor, asking about returning to work. His supervisor responded by texting back, U working for [Employer] or u working in the union? The employee visited the company s office where he was told that the vice president had said he could not work for the company anymore. The employee understood this to mean he was fired. 9

10 The panel majority, with Chairman Miscimarra concurring, found that the supervisor s text message was an unlawful interrogation. As a matter of first impression, the Board found there was no reason why a text message could not constitute an unlawful interrogation. Next, the panel majority noted that the employee was not an open union supporter, and since the text message was in direct response to a request to return to work, it strongly suggested that working for the Employer and working for the Union were incompatible. The supervisor also did not communicate to the employee any legitimate purpose for asking about whether he was working for the Union, and provided no assurances against reprisals. While concurring that the text message was an unlawful interrogation, Chairman Miscimarra disagreed that it was significant that the supervisor had not provided a legitimate purpose for the question or given assurances against reprisal. Chairman Miscimarra noted that including such factors in the totality-of-the-circumstances test suggests that questions about union matters are inherently coercive, requiring an employer to take affirmative steps to mitigate the coercion. Because the Board rejected the view that questions about union matters are inherently coercive in Rossmore House, 269 NLRB 1176 (1984), aff d sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), including those factors in the unlawful interrogation analysis was incorrect. The panel majority also found that the Employer unlawfully discharged the employee, but Chairman Miscimarra in dissent argued that the evidence showed that the employee had voluntarily quit. Bozzuto s Inc., 365 NLRB No. 146 (Dec. 12, 2017). The panel (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer, inter alia, violated Section 8(a)(3) and (1) by suspending and discharging an employee for his Union activity. The panel majority (Pearce and McFerran) further concluded that the Employer also violated Section 8(a)(1) when it interrogated the employee about his Union activity. A week into an organizing campaign among the Employer s employees, a vice president for the Employer stopped an employee with whom he was friendly to inquire what was going on with this union stuff. The employee replied that he was not going to talk about it with the vice president. Later on in the campaign, the employee was unlawfully suspended and discharged. The panel majority held that the inquiry was an unlawful interrogation, noting that the questioner was a high-ranking official and questioning can be coercive even where the high-ranking official has a good relationship with the employee. The majority further cited Board law finding that an employee s evasive responses to an employer s inquiries support finding that the inquiries were coercive. Finally, while the majority held that the evidence showed the employee was not an open Union supporter at the time he was interrogated, they found that 10

11 even if he had been, Rossmore House, 269 NLRB 1176 (1984), enforced sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir.), was distinguishable, since there the employee had answered instantly and candidly, and there had been no other ULPs. The majority also agreed with the ALJ that the employee had been unlawfully suspended and discharged based on the Wright Line analysis. Chairman Miscimarra, dissenting in part, argued that the evidence supported the conclusion that the employee was an open Union supporter at the time the interrogation occurred. Moreover, the dissent argued that under the Rossmore House totality of the circumstances test, the questioning occurred before the Employer had demonstrated any anti-union animus, the vice president was not seeking harmful information, the questioning did not occur in the vice president s office or otherwise surreptitiously, and the employee did not lie but simply refused to answer. Thus, the dissent would find that the questioning was brief and noncoercive. Chairman Miscimarra also concurred that the employee had been unlawfully suspended and discharged, but found that rather than the Wright Line test, the appropriate standard was the cat s paw theory of liability laid out in Staub v. Proctor Hospital, 562 U.S. 411 (2011), since there was no evidence that the supervisor who actually discharged him was motivated by anti-union animus. Rather, an unknown supervisor or manager had deleted all of the employee s down time from the records, which made it seem like the employee was significantly less productive than he actually was, and he was discharged for that. c. Unlawful Rules Mek Arden, LLC d/b/a Arden Post Acute Rehab, 365 NLRB No. 109 (July 25, 2017). In this pre-boeing case, the full panel (Miscimarra, Pearce, and McFerran), affirming the ALJ, found that the Employer violated Section 8(a)(1) by instructing employees not to visit other areas of the facility, directing employees not to wear union scrubs or logos, directing employees to wear attire associated with the employer s anti-union campaign, creating the impression of surveillance, and prohibiting the posting of union literature and removing such postings. Chairman Miscimarra noted that, while he disagreed with the reasonably construe prong of Lutheran Heritage Village Livonia, 343 NLRB 646, 647 (2004) (as fully explained in his dissent in William Beaumont Hospital, 363 NLRB No. 162, slip op. at 7 24 (Apr. 13, 2016)), he agreed that the rules here were promulgated in response to Section 7 activity, applied to restrict Section 7 activity, and the rule against union scrubs explicitly restricted Section 7 activity (the other prongs of Lutheran Heritage). The panel majority (Pearce and McFerran), in relying on Register Guard, 351 NLRB 1110 (2007), enforced in part, 571 F.3d 53 (D.C. Cir. 2009), to find that the employer had discriminatorily removed only union literature from the bulletin board in 11

12 violation of Section 8(a)(1), noted that they were not expressing an opinion on whether Register Guard was correctly decided. The panel majority (Pearce and McFerran), contrary to the ALJ, found that the employer also violated Section 8(a)(1) by soliciting employee grievances and impliedly promising to remedy them. Chairman Miscimarra, in dissent, agreed with the ALJ that the evidence showed that the interaction in question did not convey an implied promise. Finally, the full panel agreed that due to the violations of the Act, an election held soon afterward should be set aside. Chairman Miscimarra noted that under Dal-Tex Optical Co., 137 NLRB 1782 (1962) and Clark Equipment Co., 278 NLRB 498 (1986), conduct violative of Section 8(a)(1) a fortiori interferes with the exercise of a free and untrammeled choice in an election unless it is virtually impossible to conclude that the misconduct could have affected the election results. Chairman Miscimarra made it clear that, in following Board precedent, he expressed no view on the soundness of the virtually impossible standard. Cayuga Medical Center at Ithaca, Inc., 365 NLRB No. 170 (Dec. 16, 2017). In this post-boeing case, the Board panel (Pearce, McFerran, and Miscimarra) unanimously found, inter alia, that the Employer violated Section 8(a)(1) by applying a rule to restrict an employee s protected concerted activity. The Board majority (Pearce and McFerran) found that the Employer must rescind the unlawfully-applied rule. The majority (Pearce and McFerran) further found that the Employer unlawfully ed employees to report if they felt harassed by employees seeking unionization. The Employer maintained certain rules as part of its code of conduct. The facial legality of these rules was severed and not addressed by the Board here. In March 2015, an organizing drive commenced at the Employer s facility. In response to the drive, the Employer sent out s providing information and argument to employees against unionization. In two of these s, the Employer told employees that if they felt harassed, they could contact their supervisor or security. Later, the Employer suspended a lead Union activist pursuant to its code of conduct for disrespectful behavior. Prior to the Union drive, the activist had a sterling reputation. The Board unanimously found that the employee was unlawfully suspended for her protected concerted activity, and that the Employer unlawfully applied its code of conduct to restrict protected concerted activity. The Board majority (Pearce and McFerran) also found that the Employer s anti-union s that informed employees who felt harassed that they could report it to supervisors was also 12

13 unlawful, since the s were in the context of an anti-union argument, and because asking employees to report when they felt harassed by employees seeking unionization was overtly subjective and thus chilling to Section 7 activity, citing Tawas Industries, Inc., 336 NLRB 318 (2001). The majority further agreed with the ALJ that the remedy for the unlawful application of the code of conduct was that it must be rescinded. Chairman Miscimarra, dissenting in part, argued that the s asking employees to report harassment did not necessarily involve Section 7 activity, but rather could involve unprotected racial or sexual harassment. Chairman Miscimarra noted that employers are required to encourage reports of unlawful harassment and to promptly investigate such reports. The dissent also argued that since the Board had not found the code of conduct to be facially unlawful, the proper remedy for its unlawful application to Section 7 activity was an order to cease and desist so applying it, not rescinding the rule itself. d. Access to Employer Premises MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing, LLC, 365 NLRB No. 76 (May 16, 2017). The panel majority (Members Pierce and McFerran), affirming the ALJ, found that the Employer violated Section 8(a)(1) of the Act by barring a former employee from its premises in retaliation for her filing an FLSA lawsuit against the Employer in concert with other employees. The Employer, a casino and club, had a longstanding past practice of allowing former employees, including the Charging Party, to patronize its facility and attend social functions there. The Charging Party, in concert with another employee, on behalf of themselves and other similarly situated employees, filed a class and collective action against the Employer for unpaid wages under the FLSA and state law. The Employer consequently banned the Charging Party from the premises. The majority found that the Employer expressly retaliated against the Charging Party, and that this would reasonably tend to chill employees from exercising their Section 7 rights. Dissenting, Chairman Miscimarra first noted that he did not think that the Act s protection attached automatically merely because the lawsuit pursued was a class or collective action, but rather would look to whether two or more employees had actually engaged in concerted activity for the purpose of mutual aid or protection. However, because the Employer here did not contest that the Charging Party had engaged in protected activity, the dissent did not undertake that analysis. Next, the dissent noted that there were no allegations that barring the Charging Party had affected her terms and conditions of employment or had interfered with her pursuit of the lawsuit, since it was simply preventing her from 13

14 socializing on its property. Moreover, the dissent would find that the Board had not engaged in the balancing test of NLRB v. Erie Resistor Corp., 373 U.S. 221, 229 (1963), which requires it to weigh the interests of employees in concerted activity against the interest of the employer in operating its business in a particular manner. The Employer s action, which prevented the former employee from continuing to socialize on its premises, did not interfere with any protected conduct, whereas the Employer s right to avoid potential workplace conflict or violations of skip counsel rules are legitimate business considerations. Accordingly, the dissent would find that such a balancing test would favor the Employer here. Finally, the dissent argued that there was no evidence that the Employer had a retaliatory motive, and that even if retaliatory motive could be proved, it would be an issue for the FLSA s anti-retaliatory provisions, because the NLRB is not the forum in which to rectify all workplace injustices. The majority disagreed, noting that the issue was not whether the Employer s conduct affected the Charging Party s terms and conditions of employment, or whether it was motivated to retaliate, but rather whether, regardless of intent, the Employer s conduct reasonably tended to interfere with the free exercise of employee rights under the Act. By selectively barring a former employee who had engaged in protected concerted activity, the majority found that the Employer s actions tended to restrain other employees in the exercise of their Section 7 rights. e. Burnup & Sims Taylor Motors, Inc., 365 NLRB No. 21 (Mar. 13, 2017). Applying NLRB v. Burnup & Sims, 379 U.S. 21 (1964), the Board (Miscimarra, Pearce, and McFerran) unanimously held that the ALJ had incorrectly applied the controlling standard on whether the General Counsel had carried its burden. Following a Board-run representation election, the Employer suspended and eventually discharged an employee for pro-union comments he had made during the campaign that the Employer alleged were racially charged and threatened physical violence. The previous Halloween, a house in the community had displayed effigies of an African-American family being hanged, which was widely known in the facility. The Employer alleged that the employee told other employees to vote for the union or they would be hanged like the Halloween joke and like in the 60 s. The employee denied he said those things, and witness accounts conflicted. Under Burnup & Sims, where an employee is disciplined for misconduct during the course of protected concerted activity, the employer first has the burden of showing it held an honest belief that the discharged employee engaged in 14

15 misconduct. If the employer meets its burden, then the General Counsel has the burden of showing that the employee is not in fact guilty of the misconduct. Here, the Board unanimously found that there was reason to believe the ALJ had found the Employer had failed to prove the employee guilty, as opposed to applying Burnup & Sims correctly and finding the General Counsel had successfully proved the employee innocent. The Board majority (Pearce and McFerran), however, also found that portions of the ALJ s decision suggested that he had correctly applied the Burnup & Sims test. The majority therefore remanded the case and directed the ALJ to make a clear and reasoned determination of whether the General Counsel carried his burden to prove that the employee did not make the statement attributed to him. Acting Chairman Miscimarra dissented to the remand on the basis that once the proper analytical framework was applied to the evidence as already found by the ALJ, the judge s own findings made clear that the General Counsel had not met its burden of showing that the employee s discipline was unlawful. f. Discipline for Striking EYM King of Missouri, LLC d/b/a Burger King, 365 NLRB No. 16 (Jan. 24, 2017). The Board (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that, inter alia, the employees were disciplined for engaging in a one-day strike, and that the strike was not an unprotected intermittent strike. Thus the Board agreed that the Employer violated Section 8(a)(1) of the Act. As part of the national Fight for Fifteen campaign to raise wages for fast food workers, employees at this fast food establishment had struck in November The campaign had also organized one-day strikes at a number of other establishments in the country. In March 2015, the Employer assumed ownership of the restaurant. A month later, six employees went on a one-day strike as part of the Fight for Fifteen campaign. Their strike notice noted that the strike would last only one day. The employees were subsequently disciplined for their strike. In November 2015, the employees engaged in another strike. The Board unanimously affirmed the ALJ that the April 2015 strike was not intermittent and that the other strikes were irrelevant to the analysis. Specifically, the Board noted that the November 2015 strike had occurred after the strike in question, and furthermore, the November 2012 strike predated the Employer s ownership of Burger King restaurants, including the restaurant at issue. 15

16 g. Interference with Future Protected Concerted Activity Matrix Equities, Inc., 365 NLRB No. 69 (May 15, 2017). The Board (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer did not attempt to suppress future protected concerted activity by discharging an employee after that employee, in a long list of threats, included a threat to form a union. The Employer hired a new Human Resources assistant. When the new assistant feared he was about to be terminated, he drafted a lengthy letter to his supervisor listing various laws the Employer was breaking as well as various personal grievances he had. The letter offered no solutions to the problems, but instead threatened to report the Employer to various agencies, including the NLRB, and also threatened to organize a union. The employee had at no point talked to any other employees or otherwise engaged in any concerted activity. The Employer summarily discharged the Human Resources assistant. The Board unanimously found that, unlike in Parexel International, LLC, 356 NLRB 516 (2011), the Employer here was not motivated to discharge the Human Resources assistant in order to suppress future protected concerted activity. The assistant had not talked to any other employees nor had he given any indication he might in the future. Moreover, the vast number of complaints and information in the letter did not touch on Section 7 concerns. While the letter included a veiled intention to engage in Section 7 activity in the future, the Board concluded this was not what motivated the Employer to discharge him. Rather, the Employer was motivated by his disloyalty, specifically his threats to take actions that could potentially cause the Employer to incur substantial liabilities over the very things it was his job to help correct. Chairman Miscimarra, concurring, noted that he disagreed with Parexel but agreed that this case was distinguishable. He also would have found that the assistant was a managerial employee not protected by the Act. h. Closure Threats Neises Construction Corp., 365 NLRB No. 129 (Sept. 11, 2017). The Board panel (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer committed a host of unfair labor practices in the course of a representation election. However, the Board also unanimously held, in disagreement with the ALJ, that the Employer further committed a ULP by threatening to close the company. 16

17 A few days before a representation election was conducted by the Board, the Employer told an employee that if the Union won, it would crush the Employer, and that the Employer could not afford to pay union wages. The Board unanimously held that employees would reasonably understand that being crushed leads to closure, and that being unable to pay employees wages leads to layoffs or, ultimately, closure. Under NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969), predictions about the effect of unionization must be carefully phrased on the basis of objective fact to convey [the Employer s] belief as to demonstrably probable consequences beyond [its] control. The Employer here did not provide any substantive support for its assertions. Instead, they were made based on the assumption a union win would automatically lead to unaffordable wages, a premise not based in objective fact. Thus, the statement was found to violate Section 8(a)(1). 3. Section 8(a)(3) a. Withholding Accrued Benefits During Strike Hawaiian Telcom, Inc., 365 NLRB No. 36 (Feb. 23, 2017). The Board majority (Pearce and McFerran) held that the Employer unlawfully ceased providing employees health-related benefits based on their commencement of a strike against the Employer, where, under the collectivebargaining agreement, the employees eligibility for the benefits previously had accrued and their eligibility was dependent only on their ongoing employment relationship with the Employer, not upon their continued performance of work. Acting Chairman Miscimarra dissented. He argued that, applying the Board s decision in Texaco, Inc., 285 NLRB 241, (1987), which established the standard governing whether or when benefits are deemed accrued, he would find that the health-related benefits had not accrued and were not due and payable. Among other things, the employer reasonably and in good faith interpreted the contract to only provide these benefits post-expiration to employees who continued to provide services. b. Involuntary Transfers to Dilute Union Support CSC Holdings, LLC and Cablevision Systems New York City Corp., 365 NLRB No. 68 (May 11, 2017). The Board (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer violated Section 8(a)(3) and (1) by involuntarily transferring 17

18 employees because of their union or suspected union activity and/or other protected activity. Employees in the Employer s Bronx facility began discussing unionization, with a majority voicing support for the idea. The Employer expressed that it was worried about a possible union. It held a supervisors meeting where every employee was ranked as pro-union, anti-union, or on the fence. The Employer labeled antiunion employees as Yankees, on-the-fence employees as Mets, and pro-union employees as Red Sox. Twenty-seven employees were labeled Red Sox, nine were labeled Yankees, and sixteen were labeled Mets. Shortly thereafter, six Red Sox employees were involuntarily transferred to other facilities. Applying the Wright Line test, the Board unanimously agreed that the Employer was aware of the employees union activity. The Board further found that employer animus toward the employees union activity was amply demonstrated by the fact that the Employer had stated its concern about unionization prior to transferring the employees, because there was little evidence the Employer had involuntarily transferred people before, and because the transfers flipped the balance at the facility from pro-union employees to pro-company and ambivalent employees. Additionally, the Board agreed with the ALJ that the Employer s identification of pro-union employees as Red Sox i.e., not part of the home team constituted further evidence of animus. c. Partial Closure Dawn Trucking, Inc., 365 NLRB No. 121 (Aug. 17, 2017). The Board (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer violated Section (a)(3) and (1) by discharging its employees following a representation election, and that the Employer had not engaged in a lawful closure. Following a union victory at a representation election, the Employer ceased assigning work to its employees for the admitted reason that it did not want a union. Several months later, however, the Employer offered reinstatement to some of its employees on a non-union basis. The employees rejected the offer. The Employer made several more offers of reinstatement to different employees through the next few months, but none were accepted. In addition, the Employer also had two employees (the owner and his wife) on its payroll for a few months after the election. The ALJ, affirmed by the Board, noted that Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965), which allows employers to liquidate their business even for anti-union reasons, does not apply where the shutdown was not 18

19 permanent. By offering employees reinstatement on a non-union basis, the Employer revealed the shutdown was only temporary, and unlawfully conditioned the resumption of work on employees rejection of the union. d. Wright Line Defense BHC Northwest Psychiatric Hospital, LLC d/b/a Brooke Glen Behavioral Hospital, 365 NLRB No. 79 (May 15, 2017). The panel (Miscimarra, Pearce, and McFerran) unanimously agreed with the ALJ that the Employer met its Wright Line burden that it would have discharged an employee even in the absence of her protected concerted activity. A hospital employee, who was the union s lead organizer and chief negotiator, screamed at a tour group of supervisors and employees from another facility being led by the Employer s chief negotiator during several different encounters on the same day. The screaming was apparently motivated by a combination of factors, including a belief that management was denigrating her as a loose woman behind closed doors. The encounters occurred in public areas of the hospital where patients witnessed them, and culminated in an expletive-filled tirade in the parking lot at the end of the day. Soon thereafter, the employee was discharged both for her misconduct and her refusal to acknowledge her behavior as misconduct. First, the Board held that Atlantic Steel Co., 245 NLRB 814 (1979), did not apply, since there was no evidence that the employee s hostile encounters involved protected activity. Second, applying Wright Line, the Board held that even assuming the General Counsel could establish that the employee s union activity was a motivating factor in the decision to discharge her, the Employer established it would have discharged her even absent her union activity. Chairman Miscimarra went further to find that there was no evidence the employee s union activity was a motivating factor, and thus Wright Line would not even apply. 4. Protected Concerted Activity Butler Medical Transport, LLC, 365 NLRB No. 112 (July 27, 2017). In this pre-boeing case, the Board majority (Pearce and McFerran) affirmed the ALJ s conclusion that the Employer violated Section 8(a)(1) by discharging an employee because his Facebook posts constituted protected concerted activity. Alternatively, the majority, applying the analytical framework in Continental Group, Inc., 357 NLRB 409 (2011), found that the Employer violated Section 8(a)(1) by discharging the employee pursuant to an unlawful social media policy because his Facebook posts touch[ed] the concerns animating Section 7. 19