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Chapter Twenty-Three

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NLRA’S IMPACT ON THE WORKPLACE

NLR

A’s Impact on the

Workplace



NLRA’S IMPACT ON THE WORKPLACETable of Contents

I. RECENT LABOR LAW DEVELOPMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 761A. Final Persuader Rule Published . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 761

B. Proposed Legislation Reforming National Labor Relations Board (NLRB) . . . . . . . . 761

C. Board Revises Joint Employer Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762

D. Board Adopts New Election Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 762

E. Supreme Court’s Noel Canning Decision Invalidates Numerous Board Decisions. . 762

F. College Athletes’ Ability to Unionize . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 763

G. Successorship Attaches When Company Hires Predecessor’s Employees Regardless of Local Employee Retention Law . . . . . . . . . . . . . . . . . . . . 763

H. Anheuser-Busch Overruled; Board Applies Balancing Test to Determine Whether Witness Statements are Confidential . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764

I. Board Opens Company E-Mail Systems to Section 7 Communications . . . . . . . . . . 764

J. Board’s Attacks on Class Action Waivers Invalidated . . . . . . . . . . . . . . . . . . . . . . . . 764

II. OVERVIEW OF FEDERAL LABOR LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765A. NLRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 765

B. RLA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766

C. Sherman Antitrust Act and Clayton Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 766

III. HOW EMPLOYEES SEEK UNIONIZATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 767A. How Does a Union Become Employees’ Collective Bargaining Representative? . . . 767

IV. ELECTION CAMPAIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769A. Legal Issues that May Arise During Campaigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . 769

B. Legal Considerations in Election Campaigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 770

V. NLRB REPRESENTATION PROCEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773A. Basis for Asserting Jurisdiction Under the NLRA . . . . . . . . . . . . . . . . . . . . . . . . . . . 773

B. Stipulated Election vs. Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 773

C. NLRB New Election Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 774

D. Election Observers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775

E. Election Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 775

F. Appropriate Bargaining Unit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 776

VI. UNFAIR LABOR PRACTICES – EMPLOYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781A. Interference with § 7 Rights (§ 8(a)(1)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 781

B. Examples of Indenpendent Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 782

C. Domination or Interference with Labor Organization (§ 8(a)(2)). . . . . . . . . . . . . . . . 792



D. Discrimination Against Employees Based on Union Membership (§ 8(a)(3)) . . . . . . . 794

E. Discrimination Based on Employee Charge or Testimony (§ 8(a)(4)) . . . . . . . . . . . . 796

VII. INTERFERENCE WITH PROTECTED CONCERTED ACTIVITIES. . . . . . . . . . . . . . 797A. “Chilling” Employees’ § 7 Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 797

B. “Concerted” Activity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 799

C. Employee Conduct May Cause Loss of § 7 Protection . . . . . . . . . . . . . . . . . . . . . . . 800

D. Social Media Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 801

E. Rules Prohibiting Harassment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804

F. Off-Duty/No Access Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 804

VIII. UNFAIR LABOR PRACTICES (ULPS) - UNION . . . . . . . . . . . . . . . . . . . . . . . . . . 805A. Restraint or Coercion of Employees in Excercising § 7 Rights (§ 8(b)(1)(A)) . . . . . . 805

B. Restraining or Coercing Employer (§ 8(b)(1)(B)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

C. Causing Employer to Violate § 8(a)(3) (§ 8(b)(2)) . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

D. Secondary Boycott (§ 8(b)(4)). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 806

E. Excessive Membership Fees (§ 8(b)(5)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808

F. Featherbedding (§ 8(b)(6)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808

G. Unlawful Picketing (§ 8(b)(7)) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 808

H. Section 8(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 809

IX. ULP PROCEDURES AND PENALTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810A. ULP Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810

B. Change in Procedure for Pre-Arbitral Deferral of Certain § 8(a)(1) and 8(a)(3) Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810

C. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 810

D. ULP Charges Barred by Releases Contained in Termination Agreement . . . . . . . . . 812

X. APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 813



NLRA’S IMPACT ON THE WORKPLACE

I. RECENT LABOR LAW DEVELOPMENTSA. Final Persuader Rule Published. On March 24, 2016, the U.S. Department of Labor (DOL) issued the final version of its “persuader rule,” which requires employers, third-party lawyers and other labor consultants to disclose to the DOL any arrangement to persuade employees directly or indirectly concerning the right to organize or bargain collectively. These reports must be filed elec-tronically and, once filed, become publicly available records.

Almost five years after it published the proposed rule, the DOL has finally announced that it is adopting “the proposed rule, with modifications, [providing] increased transparency to workers with-out imposing any restraints on the content, timing, or method by which an employer chooses to make known to its employees its positions on matters relating to union representation or collective bargaining.” The rule is scheduled to take effect on April 25, 2016, and will apply “to arrangements and agreements as well as payments (including reimbursed expenses) made on or after July 1, 2016.” The reporting obligation includes disclosure of all expenditures by employers and receipts by law firms related to persuader activities. The “persuader rule” applies to labor relations governed by both the National Labor Relations Act (NLRA) and the Railway Labor Act (RLA).

Since 1959, the Labor Management Reporting and Disclosure Act (LMRDA) has required the dis-closure of arrangements made between employers and labor consultants to persuade workers to oppose unionization or collective bargaining. The rule has generally applied only when a lawyer or consultant dealt directly with employees in an attempt to affect their support during the course of a union organizing campaign. As a result of the “advice” exemption, the reporting requirement has not been applied to lawyers offering advice and counsel to businesses about their rights and obligations under federal labor law. The advice of attorneys has not triggered any reporting obligation so long as (1) the client has been free to accept or reject the advice, and (2) the lawyer avoids direct com-munications with bargaining unit employees.

The new rule significantly narrows the advice exemption. Under the new rule, legal advice is still exempt, but only so long as there is no underlying purpose to persuade. Both the attorney and the client will be required to report all arrangements in which “an object” of the services is to persuade employees concerning their rights to organize and bargain collectively. DOL identified the following categories of activity as not covered by the advice exemption, and therefore reportable, if the pur-pose of the activity is to persuade employees:

1. The attorney engages in direct contact or communication with any employee: or

2. The attorney, without having direct contact with employees:

• plans, directs, or coordinates activities, including meetings and interactions with employ-ees, that are undertaken by supervisors or other employer representatives;

• provides material or communications to the employer, in oral, written, or electronic form, for dissemination or distribution to employees;

• conducts a seminar for supervisors or other employer representatives; or

• develops or implements personnel policies, practices, or actions for the employer.

B. Proposed Legislation Reforming National Labor Relations Board (NLRB). On January 28, 2015, Senator Lamar Alexander introduced S:288, the National Labor Relations Board Reform Act, which would increase the number of Board members from five to six, requiring an even split between Republicans and Democrats. All decisions would require the agreement of four board members, resulting in consensus from both sides. It would also require staggered terms for Board members and would require each of the two members whose term expires on the same day to be from different political parties.



The bill would also give parties 30 days to seek review of a general counsel’s complaint in federal district court and would provide new discovery rights, permitting parties to obtain memoranda and other documents relevant to the complaint within 10 days. Id. Additionally, the bill would permit either party in a case before the board to appeal to a Federal Court of Appeals if the board fails to reach a decision in their case within one year. To further incentivize speedy decision-making, funding for the entire National Labor Relations Board (NLRB) would be reduced by 20 percent if the board is not able to decide 90 percent of its cases within one year over the first two-year period post-reform. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions the same day it was introduced. This bill is identical to legislation introduced by Senator Alexander and Senate Republican Leader Mitch McConnell on September 16, 2014. According to the bill’s sponsors, this proposed change is designed to put an end to partisanship. See McConnell, Alexander Introduce Bill to Turn National Labor Relations Board from Advocate to Umpire, Sep. 16, 2014, http://www.help.senate.gov/newsroom/press/release/?id=ef0140aa-b7f3-4f55-80fb-9ad1cbad2ec6.

C. Board Revises Joint Employer Standard. In Browning-Ferris Industries (BFI), 362 NLRB No. 186 (Aug. 27, 2015) the Board substantially changed and expanded its standard for finding a joint-employer relationship under the National Labor Relations Act (NLRA). The previous test had been whether two entities share the ability to directly and immediately control or determine essential terms and conditions of employment such as hiring, discipline, termination, suspension and direc-tion. Under the new standard a joint-employer relationship will be found if the alleged joint-employ-ers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not exercised. This decision is discussed in more detail below.

D. Board Adopts New Election Rules. On April 14, 2015, the Board’s new rule amending its procedures for union representation elections went into effect. The new rule’s primary purpose is to permit union representation elections to occur as quickly as possible. The new rule implements changes to the Board’s election procedures that are substantially identical to changes proposed by the Board in 2011. Those changes were struck down by a federal court on technical grounds because the Board did not have a quorum when the rule was issued. The new election procedures have the following consequences:

• The rule shortens the time period between the filing of a petition for an election and the holding of the election. Under the prior rule, the standard time period was 42 days. The new “quickie election” procedures will allow an election in under 20 days.

• The rule substantially limits the opportunity for a full pre-election evidentiary hearing of con-tested issues such as the appropriate bargaining unit, individual voter eligibility, and possibly supervisor determinations.

• The rule eliminates the pre-election request for review. Employers will have to seek review of all Regional Director election rulings through a single, post-election request.

• The rule requires that additional contact information of unit employees, including personal email addresses and cell phone numbers, be provided to the union.

E. Supreme Court’s Noel Canning Decision Invalidates Numerous Board Decisions. Al-though legislative efforts to amend federal labor laws to make them more union-friendly have so far been unsuccessful, Board members appointed by President Obama have issued decisions and implemented rule changes demonstrating a clear pro-union trend. The enforceability of rules and decisions issued by the Board may be in question after the U.S. Supreme Court’s decision in Noel Canning v. NLRB 134 S. Ct. 2550 (2014). In this decision, the Court held that President Obama’s recess appointments of Members Block, Griffin, and Flynn to the Board on January 4, 2012, were unconstitutional. Although the positions held by these members have since been filled by validly ap-pointed members, the decision calls into question the validity of hundreds of Board opinions issued during the time these members served because the Board lacked a valid quorum during that time.



In Noel Canning, the Board held that the three-day break during which the appointments were made was too short to fall within the Recess Appointments Clause. The Court held that the Clause covers intra-session recesses (such as a summer recess in the midst of a Congressional session) if they are “of substantial length.” The court specifically held that a recess of more than three days but less than 10 days is presumptively too short to fall within the Clause. The Court also held that the Senate recess from December 17, 2011, through January 20, 2012, was in fact multiple shorter recesses broken up by pro forma sessions during which no business was conducted. The President made the appointments in question on January 4, 2012, between the January 3 and January 6 pro forma sessions. The Court held that the pro forma sessions count as sessions, not as periods of recess. Thus, the recess between the two pro forma sessions was three days, too short to trigger the President’s power under the Clause, making these appointments invalid.

The Court’s decision has potentially far-reaching repercussions because it calls into question nu-merous decisions issued by the Board during the time these invalidly appointed members served. According to the Supreme Court’s 2010 decision in New Process Steel, the Board cannot act with-out a validly appointed quorum. The Court’s decision in Noel Canning means the Board lacked a valid quorum when it issued hundreds of decisions, many of which the Board had to reconsider. After the Court’s decision, Chairman Pearce stated that the Board would resolve all of the cases re-turned to it within one year of the decision. The Board completed reconsideration of cases returned from federal courts on June 26, 2015, with the issuance of 103 new decisions. See Information on Decisions Issued by January 4, 2014 Board Member Appointees, https://www.nlrb.gov/cases-decisions/information-decisions-issued-january-4-2012-board-member-appointees.

Many of the Board’s decisions in 2012 were decided against employers and some were very high profile, including Costco Wholesale Corp., 358 NLRB No. 106 (Sep. 7, 2012), where the Board struck down an employer’s social media policy, and Banner Health System, 358 NLRB No. 93 (July 30, 2012), where the Board adopted a new approach that an employer commits an unfair labor practice if it asks an employee, who is the subject of an internal investigation, to refrain from discussing the matter while the employer conducts its investigation. In Costco, the Board’s Execu-tive Secretary sent the parties a letter stating the Board has decided to accept the dismissal by the Court of Appeals in this case. The Secretary further stated that the Board is now considering the case and will take action as appropriate. See ES Office Letter August 7, 2014, https://www.nlrb.gov/case/34-CA-012421. On June 26, 2015, the Board issued a new decision in Banner Health reaching the same conclusion as before, but with more detail and “structured guidance” to employers ad-dressing situations in which they must balance the need to protect the integrity of an investigation against employees’ Section 7 right to discuss workplace investigations that might affect their terms and conditions of employment. See Banner Health System, 362 NLRB No. 137, 2015 WL 4179691 (June 26, 2015).

F. College Athletes’ Ability to Unionize. In a landmark decision, an NLRB Regional Director ruled that Northwestern University football players receiving scholarships are “employees” within the meaning of federal labor law and may unionize. See Northwestern University v. College Ath-letes Players Association, No. 13-RC-121359 (March 25, 2014). However, the Board subsequently vacated this decision, refusing to exercise discretion over the case. Northwestern Univ., 362 NLRB No. 167 (Aug. 17, 2015). The Board specifically stated that it was not deciding the issue of whether the scholarship players at Northwestern are employees. Instead, it exercised its discretion to refuse to exercise jurisdiction in this case because doing so would not promote labor stability and would upset the balance of college athletics.

G. Successorship Attaches When Company Hires Predecessor’s Employees Regardless of

Local Employee Retention Law. In GVS Properties LLC, 362 NLRB No. 194 (Aug. 27, 2015) the Board held that an employer became a Burns successor employer when it assumed control over the predecessor’s business and hired the predecessor’s employees, even though the Respondent was required to retain its predecessor’s employees for a period of 90 days pursuant to the New York City Displaced Building Service Workers Protection Act (DBSWPA). (Citing NLRB v. Burns Security



Services, 406 U.S. 272 (1972)). The Board rejected the employer’s argument that the appropriate time to make a successorship determination is after the 90-day mandatory retention period has expired and the employer has decided which employees it will retain. The Board held, “we find that the Respondent made the ‘conscious’ decision required by Burns and Fall River when it purchased the buildings and took over the predecessor’s business with actual or constructive knowledge of the requirements of the DBSWPA.” The dissent argued that this decision will result in “a sea change in our nation’s labor law” by “obliterat[ing] …. the Burns right [to unilaterally set initial terms and condi-tions of employment], solely because a local retention ordinance is in place.” Gvs Properties, LLC, 362 NLRB No. 194 (Aug. 27, 2015).

H. Anheuser-Busch Overruled; Board Applies Balancing Test to Determine Whether Witness

Statements are Confidential. In American Baptist Homes of the West, d/b/a Piedmont Gardens, 362 NLRB No. 139 (June 26, 2015), the Board revisited a prior decision that was vacated by Noel Canning and overruled Anheuser-Busch’s blanket exemption for witness statements. See Anheus-er-Busch, Inc., 237 NLRB 982, 984-985 (1978) (holding that the general duty to furnish informa-tion “does not encompass the duty to furnish witness statements themselves”). Instead, the Board held that when an employer argues that it has a confidentiality interest in protecting witness state-ments from disclosure, it will apply the balancing test set forth in Detroit Edison v. NLRB, 440 U.S. 301 (1979). Under Detroit Edison, the Board balances the union’s need for requested information against any “legitimate and substantial confidentiality interests established by the employer.”

I. Board Opens Company E-Mail Systems to Section 7 Communications. In Purple Commu-nications, Inc., 361 NLRB No. 126 (2014), the NLRB overturned Register Guard, 351 NLRB 1110 (2007), enf’d in part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard the Board had held that employees have no statutory right to use their employers’ email system for Sec-tion 7 purposes. In a sharply divided 3-2 decision, the majority held that Register Guard improperly elevated property rights of employers over employees’ rights. The Board determined that emails in the workplace are a means for employees to effectively communicate with each other at work about union organization and other terms and conditions of employment. Thus, the Board stated, “we de-cide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” See also Cellco P’ship d/b/a Verizon Wireless, 2015 WL 5560242 (N.L.R.B. Div. of Judges Sept. 18, 2015) (employer rule specifically prohibiting use of company resources (emails, fax machines, computers, telephones, etc.) to solicit or distribute at any time was unlawful under Purple Communications).

J. Board’s Attacks on Class Action Waivers Invalidated. In D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), the Board held that an employer violated § 8(a)(1) by requiring employees, as a condition of employment, to execute agreements requiring employees to address any employment-related disputes in individual arbitrations. The Board held this prohibition against employee collec-tive actions violated § 8(a)(1) of the Act. However, in December 2013, the Fifth Circuit overruled this decision, holding that the Board failed to give proper weight to the Federal Arbitration Act (FAA), which requires lawful arbitration agreements to be enforced as written. D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The court held that neither the FAA’s “saving clause” nor a contrary congressional command precluded application of the FAA’s mandate requiring arbitration agree-ments to be enforced. Specifically, the majority stated:

The NLRA should not be understood to contain a congressional command over-riding application of the FAA. … Because the Board’s interpretation does not fall within the FAA’s “saving clause,” and because the NLRA does not contain a congressional command exempting the statute from application of the FAA, the [arbitration agreement] must be enforced according to the terms.

This opinion was not a complete win for D.R. Horton. The NLRB had found that the language con-tained in the arbitration agreement could lead employees to reasonably believe “that they were



prohibited from filing unfair labor practice charges.” The Fifth Circuit agreed with the NLRB and concluded that certain incompatible language contained in the arbitration agreement could be mis-construed. Thus, the court enforced the NLRB’s order “that Section 8(a)(1) has been violated be-cause an employee would reasonably interpret the [arbitration agreement] as prohibiting the filing of a claim with the [NLRB].” Additionally, in Murphy Oil U.S.A., Inc, v. NLRB, 2015 WL 6457613 at *3 (5th Cir. Oct. 26, 2015), the Fifth Circuit, following its decision in D.R. Horton, held that the employer in that case “committed no unfair labor practice by requiring employees to relinquish their right to pursue class or collective claims in all forums by signing the arbitration agreements at issue here.” Even before the Fifth Circuit overruled D.R. Horton, a number of federal courts refused to follow it. See, e.g., Owen v. Bristol Care, Inc., 702 F.3d 1050 (8th Cir. 2013) (rejecting the Board’s analysis in D.R. Horton and upholding the validity of a class action waiver in an arbitration agreement; ordering arbitration of an employee’s collective action under the Fair Labor Standards Act (FLSA)).

Despite these court rulings, the Board continues to invalidate arbitration agreements in employ-ment. See, e.g., Amex Card Servs. Co., 363 NLRB No. 40 (NLRB 2015) (relying on the Board deci-sions in Murphy Oil and D.R. Horton (even though the Fifth Circuit has refused to enforce those decisions), the Board held that the employer violated the NLRA by maintaining and enforcing its arbitration policy, which included a class action waiver); Leslie’s Poolmart, Inc., 362 NLRB No. 184 (NLRB 2015) (relying on its decision in Murphy Oil the Board held that the employer violated § 8(a)(1) by maintaining “a mandatory and binding arbitration agreement which required employees to re-solve certain employment-related disputes exclusively through individual arbitration and, though not expressly, but in practice, required them to relinquish any right they have to resolve such disputes through collective or class action”); On Assignment Staffing Servs., Inc., 362 NLRB No. 189 (Aug. 27, 2015) (relying on its decisions in Murphy Oil and D.R. Horton the Board invalidated a mandatory arbitration agreement containing a class action waiver, even though it allowed employees to opt out of the waiver because the opt out procedures significantly burdened employees’ exercise of their Section 7 right to pursue collective or class litigation). For more information, please see the Alterna-tive Dispute Resolution Chapter of the SourceBook.

II. OVERVIEW OF FEDERAL LABOR LAWSA. NLRA. The NLRA, 29 U.S.C. § 151, et seq., is the primary federal law governing the relationship between employers and unions (other than employers who are carriers as defined by the Railway Labor Act (RLA) discussed below). The law was enacted in 1935. It established the NLRB and pro-hibited employer unfair labor practices. The Act was amended in 1947 by the Labor Management Relations Act (LMRA) (also known as the Taft-Hartley Act), which, among other things, established union unfair labor practices and prohibited payment of money and other things of value to repre-sentatives of employees, labor union officials, and labor organizations by employers, and persons acting in the interest of employers. The Act was amended again in 1959 by the Labor-Management Reporting and Disclosure Act (LMRDA) (also known as the Landrum-Griffin Act). Among other things, this amendment required unions to make financial reports each year to the DOL disclosing a number of categories of income and disbursements. Although the NLRB enforces the NLRA, the LMRDA is enforced by the DOL.

1. NLRB Jurisdiction. The NLRB enforces the NLRA. In Leedom v. Kyne, 358 U.S. 184 (1958), the Court held that Board decisions in representation matters are not directly reviewable by courts until the employer has gone through the refusal to bargain mechanisms. In very limited circumstances, in which the Board has acted in excess of delegated powers and contrary to a specific prohibition in the Act, court review may be appropriate.

The Third Circuit has held that the NLRA does not apply outside the territorial jurisdiction of the U.S.; therefore, the NLRB does not have jurisdiction over employees working outside of the U.S. See Asplundh Tree Expert Co. v. NLRB, 365 F.3d 168 (3d Cir. 2004).



2. Important Principles of the NLRA.

a. Section 7. Section 7 gives employees the right to engage in protected concerted activity.

b. Employer Unfair Labor Practices (ULPs). Section 8(a)(1) prohibits employers from in-terfering with employees’ § 7 rights. Sections 8(a)(2)-(5) cover other types of employer unfair labor practices. Violations can be independent or derivative, i.e., a violation of §§ 8(a)(2)-(5) also constitutes an automatic violation of § 8(a)(1).

c. Union ULPs. Section 8(b)(1)(A) prohibits union restraint or coercion of employees’ ex-ercise of § 7 rights in their relations with the union. The provision is aimed at union tactics involving violence, intimidation, reprisals, and threats to compel individual employees to join the union, but does not outlaw peaceful recognitional picketing by a minority union (which is subject only to the limitations in §§ 8(b)(4) and 8(b)(7)).

d. Collective Bargaining. It is an unfair labor practice for both employers and unions to refuse to bargain collectively once the duty to bargain has attached. Collective bargaining is discussed in more detail in the Coping With Unions Chapter of the SourceBook.

e. Strikes. The NLRA protects employees’ right to strike and not to strike. Strikes are gener-ally divided into two categories: (1) ULP strikes (strikes in response to an employer’s ULP); and (2) economic strikes (generally, most lawful strikes other than ULP strikes are considered economic strikes). Strikes are not protected by the NLRA if they are for unlawful purposes or involve unlawful actions such as violence or other types of unprotected conduct. Strikes are discussed in the Coping With Unions Chapter of the SourceBook.

f. Representation Elections. Section 9 of the NLRA deals with representation elections. The Act sets out strict standards designed to ensure employees have acted freely in deter-mining whether they wish to be represented.

B. RLA. The RLA was originally passed in 1926 and governs the relationship between carriers (rail-ways and airlines) and their employees. It provides a completely different structure for the resolution of disputes than envisioned by the later NLRA. It provides machinery for settlement of major and minor disputes and imposes substantial limitations on the ability of the parties to resort to economic action prior to substantial mediation. It also provides for a presidential board with authority to medi-ate contract negotiations and provides for a cooling-off period if needed. The RLA also provides a basis for airline employees to seek to unionize. For more information regarding the RLA, see the Railway Labor Act and Interaction Between the RLA and Other Laws Chapters of the SourceBook.

C. Sherman Antitrust Act and Clayton Act. Enacted in 1890, the Sherman Act prohibits any con-tract in restraint of trade or commerce. Following its passage, courts found labor to be a commodity and cited the Sherman Act to invalidate collective bargaining agreements (CBAs) because they reduced competition in the labor market by establishing uniform wage scales and working condi-tions. Over time, Congress enacted various statutes including the Clayton Act and later the Norris-LaGuardia Act to exempt labor activities from antitrust lawsuits. Federal courts interpreting these laws recognize two distinct exemptions to the antitrust laws – a statutory exemption that covers specific conduct described in the Clayton or Norris-LaGuardia Acts, and a nonstatutory exemption.

The nonstatutory labor exemption to the antitrust laws generally protects agreements or activities between or among employers and unions in the collective bargaining process from the antitrust laws.

The Ninth Circuit has held that a revenue-sharing agreement among supermarket chains signed to counter an anticipated strike and picketing by union workers was not exempt from scrutiny un-der the Sherman Act pursuant to the nonstatutory labor exemption. See California ex rel. Harris v. Safeway, Inc., 651 F.3d 1118 (9th Cir. 2011) (addressing practice of revenue sharing in the context of multi-employer bargaining, the court held that the salient concerns central to the history and logic of the exemption were not present); See also Reed v. Advocate Health Care, 2007 WL 967932 (N.D.



Ill March 28, 2007) (alleged multi-employer conduct occurring outside the context of any collective bargaining is not entitled to the nonstatutory labor exemption); Cason-Merenda v. Detroit Med. Ctr., 862 F. Supp. 2d 603 (E.D. Mich. 2012) (granting summary judgment on the plaintiffs’ per se claim of conspiracy to depress wages and denying summary judgment on the plaintiffs’ “rule of reason” con-spiracy claim). For an additional discussion of antitrust issues arising in the context of “no poaching” agreements between employers, please see the Employment Contracts and Noncompete Agree-ments Chapter of the SourceBook.

III. HOW EMPLOYEES SEEK UNIONIZATIONA. How Does a Union Become Employees’ Collective Bargaining Representative?

1. Representation Election. NLRB representation elections are the most common manner in which a union gains the right to bargain. Generally speaking, a union will ask employees to sign authorization cards stating that they would like to be represented by the union. The union may or may not present the cards to the employer, and when, as is usually the case, the employer refuses to voluntarily recognize the union as the exclusive collective bargaining representative of the employees, the union will present the cards to the Board and demand an election. Unions must present cards for at least 30 percent of employees in an appropriate bargaining unit for there to be a valid “showing of interest” significant enough to warrant an election. The Board will then usually order an election for a defined unit of employees. If the union obtains a total of 50 percent plus one of the votes of the eligible employees voting, it has the right to then represent the entire defined bargaining unit in collective bargaining.

2. Voluntary Recognition by the Employer. The employer may also voluntarily recognize the union when the union presents the employer with cards establishing that a majority of the employees would like a union. This process of the employer recognizing the union as the bar-gaining representative solely on the basis of signed cards is known as “card check” recognition. An employer’s voluntary recognition of a union, based on a showing of the union’s majority status, bars an election petition for a reasonable period of time. Lamons Gasket Company, 357 NLRB No. 72 (August 26, 2011) (overruling Dana Corp., 351 N.L.R.B. 434 (2007)).

The effect of card-check recognition on an employee’s ability to file a subsequent decertification petition is discussed in the Coping With Unions Chapter of the SourceBook.

a. Card Check. An employer may be bound to recognize and bargain with a union when it has agreed to forego its right to have an election. Such a finding can be made based upon a card check or a poll of employees. Sullivan Electric Co., 199 N.L.R.B. 809 (1972), enf’d, 479 F.2d 1270 (6th Cir. 1973). An employer is not obligated to agree to a card check or a poll or any other alternative method of determining a union’s majority status. Linden Lumber, Div. Sum-mer & Co. v. NLRB, 419 U.S. 301 (1974). See also International Union of Operating Engineers v. NLRB, 361 F.3d 395 (7th Cir. 2004) (employer does not implicitly recognize a union by sim-ply reviewing authorization cards and then stating that the union has collected them from all of the potential bargaining unit, where there is no clear agreement to waive the right to an elec-tion); Jefferson Smurfit Corp., 331 N.L.R.B. 809 (2000) (employer did not waive the right to an election even though the company’s employee relations manager read a letter from the union requesting recognition and examined and copied authorization cards presented by the union; an employer has the right to an election to resolve the issue of majority status and, absent a clear agreement to forego that right, does not violate § 8(a)(5) by insisting upon an election).

b. Neutrality Agreements. A neutrality agreement provides that an employer will essentially remain neutral and will not actively campaign against a union seeking to represent its em-ployees. Neutrality agreements come in various shapes and sizes. Some employers agree to a total gag order when it comes to union-related discussion. Some employers agree that they will share only facts about the union, and will not disparage the union. Some agreements give



the union special access rights to the employer’s facility or require the employer to provide the union with employee contact information. Neutrality agreements often include an enforcement mechanism, such as an arbitration clause, and arbitrators have upheld the validity of neutral-ity agreements. See Quebecor World, Inc. (St. Antoine, Arb. 2006). In Mulhall v. Unite Here Local 355, 667 F.3d 1211 (11th Cir. 2012), the Eleventh Circuit held that promises by an em-ployer to: provide union representatives access to nonpublic work premises to organize em-ployees during nonwork hours; provide the union a list of employees, their job classifications, departments, and addresses; and remain neutral to the unionization of employees could be considered a “thing of value” for purposes of stating a claim for violation of the LMRDA. The court noted that the Fourth and Third Circuits have addressed challenges to neutrality and cooperation agreements under § 302, and both courts found the assistance was not a thing of value. Adcock v. Freightliner LLC, 550 F.3d 369, 374 (4th Cir.2008); Hotel Emps. & Rest. Emps. Union, Local 57 v. Sage Hospitality Res., LLC, 390 F.3d 206, 219 (3d Cir.2004). The Supreme Court granted certiorari in Mulhall, 133 S. Ct. 2849 (June 24, 2013); however, after hearing oral argument in the case the Court dismissed certiorari as improvidently granted. 134 S. Ct. 594 (Dec. 10, 2013).

3. Impact of Globalization on Union Organizing Efforts. Some unions have attempted to coordinate the implementation of a European-style works council with an employer in an effort to bolster their attempt to organize the employer’s workforce. An example of this is the United Auto Workers Union’s (UAW’s) attempts to organize a Volkswagen plant in Tennessee. In January 2014, Germany’s Volkswagen AG and the UAW agreed on a plan to conduct a union election, and the company permitted union organizers in the factory for a week before the scheduled Board election. See Melanie Trottman and Kris Maher, Volkswagen Vote Loss Signals Difficulty Ahead for Union Organizers, Wall St. J., Feb. 15, 2014, http://online.wsj.com/articles/SB10001424052702304315004579385372001325260.

The company cooperated with UAW because it wanted the plant workers to form a works council, which is common in Germany and, in a slightly different form, Europe. Generally, a works council is a group of employees that provides feedback to management on running the plant. Id. Sec-tion 8(a)(2) of the NLRA states that it is a ULP for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” Thus, in the United States, an employer cannot unilaterally establish a works council without risking violating § 8(a)(2). An employer can, however, negotiate the implementation of a works council with a union representing its workforce. The UAW attempted to leverage the company’s desire for a works council to obtain its cooperation in conducting a union election so that UAW could become the representative of the employees at the plant and, subsequently, negotiate the implementation of a works council. However, the UAW lost the Board supervised election held in February 2014. Subsequently, UAW began a voluntary campaign to sign up workers and formed Local 42, which Volkswagen has said it will recognize when the union represents 50 percent of the plant’s workforce. See Eric Snyder, Volkswagen works council back UAW in Chattanooga, Nashville Bus. J., Sep. 11, 2014, http://www.bizjournals.com/nashville/morning_call/2014/09/volkswagen-works-council-backs-uaw-in-chattanooga.html.

Additionally, global union federations (GUF) have impacted unionization efforts at some U.S. workplaces. GUFs are international representatives of unions organizing in specific industry sectors or occupational groups. A global union federation may sign an international framework agreement (IFA) with the global headquarters of a multinational company, in which the company agrees to take a neutral position on unions. A U.S. subsidiary may not be aware of the terms of such IFAs, which potentially could be used by the GUF to induce the corporate headquarters to intervene and restrain the subsidiary from opposing the unionization efforts.

4. After Acquired Contract Clause. Some employers agree to union contracts that contain an “after acquired” or “additional stores” clause, which requires recognition of the union at future



employer locations upon proof of majority status. Assuming such a clause is valid, an employer may be deemed to have waived the right to demand an election. The validity of an “after ac-quired” or “additional stores” clause turns in part on whether the clause constitutes a mandatory subject of bargaining. If it is instead a permissive subject, then the employer does not violate § 8(a)(5) of the Act by ignoring it. Supervalu, Inc., 351 N.L.R.B. 948 (Sept. 30, 2007). In Supervalu, the NLRB held that the “additional stores” clause at issue was not a mandatory subject of bar-gaining because it did not vitally effect the terms and conditions of existing unit employees. Id. at 949. See also Shaw’s Supermarkets, 343 N.L.R.B. 963 (2004) (granting review and hearing regarding whether the employer clearly and unmistakably waived the right to a Board election by an after acquired clause and, if so, whether public policy reasons outweigh the employer’s private agreement not to have an election).

5. Employer Unfair Labor Practices (ULPs). In limited cases, the Board may remedy an em-ployer’s ULPs by ordering the employer to bargain with the union even though an election has not been held or has been held and lost by the union. Generally this remedy will be available where the employer commits serious ULPs that interfere with the selection process and tend to preclude the holding of a fair election. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). Even if a union decides to proceed with an election despite employer ULPs, it can still obtain a bargaining order if it files election objections, has the election set aside, and meets the standards necessary for a bargaining order. Irving Air Chute Co., Inc., 149 N.L.R.B. 627 (1964), enf’d, 350 F.2d 176 (2d Cir. 1965). Generally, the Board will only issue a Gissel bargaining order where the employer has committed numerous ULPs that render traditional remedies inadequate to ensure a fair representation election and where the union can show it has secured authorization cards from a majority of the bargaining unit employees. See, e.g., United Scrap Metal, Inc., 344 N.L.R.B. 467 (2005) (rejecting employer’s claim that the General Counsel failed to show that the union achieved majority status).

IV. ELECTION CAMPAIGNSA. Legal Issues that May Arise During Campaigns. If the union did not obtain representation or an election through one of the methods discussed above, it will have to rely on success in a secret ballot election. Before the election, both the union and employer will campaign to encourage em-ployees to vote either in favor of union representation or against it. Board decisions and case law provide some direction regarding what activities are permitted during a campaign and what could be considered unfair labor practices.

1. An employer should instruct supervisors about the law, making sure they are prepared to respond fully and properly to employee questions.

2. Neither the union nor the employer can make speeches within 24 hours of election. See Peerless Plywood Co., 107 N.L.R.B. 427 (1953).

3. Polling employees may violate the NLRA. See Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967). Additionally, a “union truth quiz” conducted by an employer during an election campaign violated § 8(a)(1) in Sea Breeze Health Care Center, Inc., 331 N.L.R.B. 1131 (2000). The quiz required employees to identify themselves and asked about their feelings about union.

4. In Fermont Division Dynamics Corp. of America, 286 N.L.R.B. 920 (1987), the award of prizes for employees writing a pro-company or anti-union slogan was found to be a grant of benefits, which violated § 7 of the Act. See also Eldorado Tool, 325 N.L.R.B. 222 (1997) (tombstone dis-play of UAW factories that closed was unlawful).

5. In Sequel of New Mexico d/b/a Bernalillo Academy, 361 NLRB No. 127 (2014), the Board noted that campaign parties, “absent special circumstances are legitimate campaign devices.” (citing LM Berry, 266 NLRB 47, 51 (1983)). The Board will evaluate campaign parties using a four-part test: size of benefit; number of employees receiving the benefit; how employees would



reasonably view the purpose of the benefit; and the timing of the benefit. In this case the Board found that the party given by the employer was not objectionable.

6. While the Board maintains its position that merely making anti-union T-shirts available is law-ful, the Fourth U.S. Circuit Court of Appeals has affirmed a Board decision holding that when an employer required employees to “sign” for the T-shirts during a union organizing drive and refused to give the T-shirts to openly pro-union workers, the employer committed a ULP. House of Raeford Farms v. NLRB, 7 F.3d 223 (4th Cir. 1993).

B. Legal Considerations in Election Campaigns.

1. Laboratory Conditions. NLRB elections are conducted in accordance with strict standards designed to give the employees an opportunity to indicate freely whether they wish to be repre-sented for purposes of collective bargaining. These standards are violated if the employer dis-turbs the “laboratory conditions” under which NLRB elections are held. While conduct sufficient to constitute a ULP generally would be sufficient to set aside the results of the election, the test is whether the conduct is sufficient to upset the laboratory conditions necessary for a free and fair election, not whether the conduct violates the ULP aspects of the Act. Thus, even conduct that does not rise to the level of a ULP may be found to have violated the laboratory conditions warranting a decision to set aside the results of an election. See, e.g., In Re Lucky Cab Co., 360 NLRB No. 43 (Feb. 20, 2014) (noting that in Dal-Tex Optical Co., 137 NLRB 1782, 1786-1787 (1962), the Board held that ULPs committed during the critical period are, “a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election;” while there is a narrow exception to this rule for 8(a)(1) violations that are so minimal or isolated that “it is virtually impossible to conclude that the misconduct could have affected the election results” that exception has never been applied to violations of § 8(a)(3)).

2. Typical Objections Filed By Employers.

a. Altered sample ballots. Unions often distribute altered sample ballots to employees shortly before a union election. Frequently, the employer files an objection to the use of an altered sample ballot, claiming it misled employees. In the past, when an altered sample bal-lot did not identify the party that prepared it, the Board would determine, on a case-by-case basis, whether the document had a tendency to mislead employees into believing that the Board favored one party over another. In Ryder Memorial Hospital, 351 N.L.R.B. 214 (2007), the Board announced that it will not set aside a representation election based on a party’s distribution of an altered sample ballot, provided the altered ballot is an actual reproduction of the Board’s recently revised sample ballot, which includes newly added disclaimer language. In Ryder, the Board announced that it has revised the sample ballot included with a Notice of Election to include a disclaimer stating: “The National Labor Relations Board does not en-dorse any choice in this election. Any markings that you may see on any sample ballot have not been put there by the National Labor Relations Board.” According to the Board, revising the sample ballot to include the full text of the disclaimer eliminates the need for a case-by-case consideration of election challenges based on altered sample ballots.

b. Improper waiver of initiation fees by a union. The union cannot condition waiver of ini-tiation fees upon joining a union or signing a union card prior to the election. NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973). A union does not, however, commit a ULP by offering a fee waiver if it wins the election, because the waiver is available to all and does not depend upon the employee’s individual vote. NLRB v. VSA, Inc., 24 F.3d 588 (4th Cir. 1994). However, in Go Ahead N. Am., 357 NLRB No. 18 (July 18, 2011), the Board held that a union committed a ULP when it announced that it would waive unit members’ back-dues because that announcement was made during the critical period preceding a decertification election. The Board noted that the union was aware of the back-dues obligation for several months prior to the decertification election, but did nothing to relieve employee-members of this obligation until six months after the obligation accrued and after the petition had been filed, when a concern surfaced that



those dues might become an issue in the decertification election. “In these circumstances, we find that employees reasonably would infer that the purpose of the Union’s expressed willingness to forgive the obligation was to induce them to support the Union.” Accordingly, the Board found that the back-dues waiver constituted an objectionable grant of a tangible financial benefit, set aside the election and directed a second election.

c. Photographing or videotaping employees. A union may not photograph or videotape employees without a sufficient explanation for its conduct. Randell Warehouse of Ariz., 347 N.L.R.B. 591 (2006), on remand from 252 F.3d 445 (D.C. Cir. 2001).

d. Threats or violence. An atmosphere of violence or threats of violence may be a sufficient basis to set aside an election even if a third party engaged in the conduct. See, e.g., PPG Indus. Inc., 350 N.L.R.B. 225 (2007) (setting aside election in favor of union because threats by third parties created a “general atmosphere of fear and reprisal rendering a free election impossible”).

e. Interjection of race into the campaign. Neither the union nor the employer can engage in inflammatory appeals to racial prejudice. See M&M Supermarkets v. NLRB, 818 F.2d 1567 (11th Cir. 1987) (setting aside a union election victory where an employee referred to the em-ployer’s owners as “damn Jews”); KI (USA) Corp. v. NLRB, 35 F.3d 256 (6th Cir. 1994) (over-turning NLRB bargaining order after an election, holding that the election was “tainted” due to the distribution of an “anti-American letter” containing negative stereotyping of Japanese (the owners of the company) by the union); but see Honeyville Grain v. NLRB, 444 F.3d 1269 (10th Cir. 2006) (upholding Board determination that comments by union regarding company owners’ Mormon faith were not inflammatory and did not require setting aside union election victory; “[h]ere, the Union agents sought to tie the comments to a relevant employee issue – how the company distributes its profits – and we do not believe the remarks incited religious tension in the same way as a racial or religious slur intended solely for inflammatory appeal”).

f. Pre-election benefits. The conferring of pre-election benefits that are sufficiently valuable and desirable in the eyes of the employees to whom they are offered has a potential influ-ence on the person’s vote. In Stericycle, Inc., 357 NLRB No. 61 (August 23, 2011), the Board held that “a union engages in objectionable conduct warranting a second election by financ-ing a lawsuit filed during the narrow time period – known as the “critical period” – between the date of the filing of the representation petition and the date of the election, which [s]tates claims under Federal or State wage and hour laws or other similar employment law claims on behalf of employees in the unit.” The Board also attempted to articulate and explain the limits of its decision. “Union conduct to educate employees concerning their rights under labor laws remains protected and unobjectionable during the critical period before a representation election (as well as before and after the critical period). Unions can inform employees about their rights, assist them in identifying violations, urge them to seek relief, and even refer them to competent counsel without casting into question subsequent election results.” Further, the Board held “just as a union may refer employees to competent counsel without provoking a colorable objection, such counsel may file suit on behalf of employees, even during the critical period, so long as the union does not fund the litigation directly or indirectly, and the lawyers are acting solely in the interest of their employee clients and not as the union’s agents.” The Board also held that a union does not engage in objectionable conduct by funding employ-ment-related litigation on behalf of employees so long as the litigation is commenced prior to the filing of an election petition. See also Nestle Ice Cream Co. v. NLRB, 46 F.3d 578 (6th Cir. 1995) (union’s filing of a lawsuit against the employer the day before the election and its statements that employees were due approximately $35,000 materially affected the election results in favor of the union, rendering the election invalid); but see Detroit Auto Auction v. NLRB, 528 U.S. 1074 (2000) (lower court case reported at 182 F.3d 916) (The U.S. Supreme Court let stand a union’s pre-election promise to provide each employee $150 per week in the event of a strike. The lower court held that this was not impermissible vote buying.)



3. Typical Objections Filed By a Union.

a. Soliciting grievances from employees, either individually or in meetings. See Garda CL Great Lakes, Inc., 359 NLRB No. 148 (2013) (“The solicitation of employee grievances during an organizing campaign ‘raises an inference that the employer is promising to remedy the grievances,’ and this inference is ‘particularly compelling when, during a union organizational campaign, an employer that has not previously had a practice of soliciting employee griev-ances institutes such a practice.’”) (citing Amptech, Inc., 342 NLRB 1131, 1137 (2004), enfd. 165 Fed. Appx. 435 (6th Cir. 2006)).

b. Management or agents of management visiting employees at their homes to urge them to reject the union. See Calderwood, F. N., Inc., 124 NLRB 164 (1959).

c. Campaigning in the immediate vicinity of the polls while the polls are open. . See Continen-tal Can Co., Inc., 80 NLRB No. 124 (1948).

d. Maintenance of unlawful, overly broad no solicitation or no distribution rules during a union campaign. However, in Delta Brands, Inc., 344 N.L.R.B. 252 (2005), the Board pointed out that an overbroad no solicitation or no distribution rule does not automatically set aside an election. The objecting party must demonstrate that the rule affected the “laboratory condi-tions” required for a fair election.

e. Banning promotional videos. The NLRB General Counsel has taken the position that re-quests to show union promotional videos in nonwork areas during nonwork time (on battery operated TV/VCR’s) is the equivalent of the distribution of union literature in nonwork areas during nonwork time and may not be banned without showing it is necessary to maintain plant discipline or production. NLRB Report of the General Counsel, R-2310 (Sept. 1, 1998) (“We considered a union video to be a modern-day equivalent of campaign literature”).

f. Maintenance of objectionable handbook rules even though the rules are not enforced dur-ing the critical period. See Jurys Boston Hotel, 356 NLRB No. 114 (March 28, 2011) (2-1). In Jurys, the union filed objections claiming seven of the rules violated the NLRA after it lost a decertification petition by one vote. The Board held that three of the rules (prohibiting solicita-tion and distribution on hotel property; prohibiting loitering; and prohibiting employees from wearing emblems or badges other than those issued by the employer) were objectionable. The Board held that the mere maintenance of the rules may have affected the results of the election and, thus, violated § 8(a)(1). Accordingly, the Board ordered a new election.

g. Supervisors present in voting area while balloting is occurring. See Milchem, Inc., 170 NLRB 362 (1968); Electric Hose and Rubber Co., 262 NLRB No. 14 (1982).

h. Denying employees access to plant premises where polls are located. See Mental Health Association, Inc. And Service Employees International Union, Local 509, 356 NLRB No. 151 (2011).

i. Passing out anti-union buttons under certain circumstances. See Kurz-Kasch, Inc. 239 NLRB No. 107 (1978).

j. Holding a massed meeting on paid company time within 24 hours of the election to cam-paign against the union. See Peerless Plywood Co., 107 N.L.R.B. 427 (1953); but see Chi-cagoland Television News, Inc., 328 N.L.R.B. 367 (1999) (12-hour long pre-election party the day before the election was not enough to set aside the election where employer had a his-tory of hosting such events, electioneering was not permitted, and no speeches were given).

k. Refusing to submit an Excelsior list of eligible voters including the employees’ full name to the Board for use by the union. Macon Health Care Facility, 315 N.L.R.B. 359 (1994).

l. Unequal enforcement of rules or policies. See Schaumburg Hyundai, Inc., 318 NLRB No. 48 (1995) (supervisor’s threats that more onerous working conditions and stricter enforce-



ment of work rules would result if union was elected were unlawful).

m. Threats of discipline or plant closing. See Onsite News, 359 NLRB No. 99 (2013) (adopt-ing ALJ’s findings that the employer violated § 8(a)(1) by threatening employees with stricter enforcement of its work rules if they supported the union, and that such threats constituted objectionable conduct sufficient to set aside the election).

n. Alteration of paycheck process less than 24 hours before a union vote. Kalin Construction Co., Inc., 321 N.L.R.B. 649 (1996).

o. Offering off-duty employees two hours of pay if they would come in to vote linked to an anti-union message. See Sunrise Rehabilitation Hosp.,320 NLRB No. 28 (1995).

p. Handling or collecting a voter’s mail ballot in a representation election is objectionable and may be grounds for setting aside the election. See Fessler & Bowman Inc., 341 N.L.R.B. 932 (2004).

q. Misleading statements/misrepresentations. Misrepresentations about the union will no longer be a basis for setting aside the results of an election. Misrepresentations about the Board’s processes have been such a basis. Affiliated Midwest Hospital, Inc., 264 N.L.R.B. 1094 (1982), enf’d 789 F.2d 524 (7th Cir. 1986). The Board has allowed an employer, in cer-tain limited circumstances, to tell its employees that its customers have expressed disfavor with the possibility of the employer becoming unionized, and that this may cost the employer the customer’s business.

r. Confiscation of union literature and surveillance of leafleting that occurred during criti-cal period warranted setting aside election. Intertape Polymer Corp. v. N.L.R.B., 2015 WL 5209204, at *6 (4th Cir. Sept. 8, 2015).

s. Raffles: In Atlantic Limousine Inc., 331 N.L.R.B. 1025 (2000), the Board adopted a bright line rule prohibiting election-day raffles if: (i) eligibility to participate in the raffle is tied to either voting in the election or being at the election site on election day; or (ii) the raffle is conducted during a period from 24 hours before the opening of the polls until the closing of the polls.

V. NLRB REPRESENTATION PROCEDUREA. Basis for Asserting Jurisdiction Under the NLRA. There are two key standards for asserting jurisdiction under the NLRA. One is the retail standard. Under this standard, the employer must do some business across state lines and have gross annual volume of business of at least $500,000. Under the nonretail standard, the employer must have an annual outflow or inflow, directly or indi-rectly, across state lines of at least $50,000.

B. Stipulated Election vs. Hearing. A critical step in a labor union’s attempt to unionize a group of employees is the determination of the voting unit. This is done either through agreement between the parties in a stipulated election agreement or by the regional director in a directed election with or without a pre-election hearing on the record. In a stipulated election, the company and union to agree to such things as which employees will be eligible to vote in the election and the time, date and place of the election. If the parties do not enter into an election agreement, the Board may or may not hold a hearing on the record per the new election rules. Previously, the employer could have litigated matters in this hearing such as the supervisory status of individuals; the appropriate-ness of the petitioned-for unit, including expansion or contraction of the unit, unit placement is-sues, and multi-facility unit; managerial and confidential status of employees; eligibility of part-time employees; eligibility of certain classes of employees such as “plant clericals” and quality control employees; jurisdiction of the Board; whether the union is a labor organization; union conflict of interest; contract bar; and other issues. However, under the new rules, only issues relevant to a question of representation and/or questions of “unit scope” will be handled at a pre-election hearing, and then only if the questions involve 20 percent of the bargaining unit. Full litigation of all eligibility



issues prior to the direction of an election will no longer be the standard. Thus, many of the benefits of a hearing under the prior rules, such as the possibility of getting a petition dismissed and post-ponement of the eligibility cutoff date for voting, no longer apply under the new rules.

C. NLRB New Election Rules. In addition to the changes discussed above, the Board’s new rules make a number of other changes to election procedures, primarily designed to speed up the elec-tion process in no small part by curtailing the employer’s rights to challenge the units proposed by the union. Changes made by the new rules include:

1. Parties may file and serve documents electronically.

2. The union must serve a copy of the petition on the employer at the same time it is filed with the Board. The Board will serve a Notice of Hearing and Notice of Petition for Election on all parties. The employer is required to post and distribute to employees the Notice of Petition for Election.

3. Hearings will be held much more quickly under the new rules than under the old rules. Under the new rules, pre-election hearings will generally be set to open eight days after a hearing no-tice is served on the parties.

4. The employer is required to respond to the election petition by filing a Statement of Position by noon one business day before the pre-election hearing. The Statement of Position will identify the issues the employer has with the petition. The union will be required to respond to the em-ployers’ statement of position at the beginning of the hearing

5. The Statement of Position must also include a list of the names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, and any other employees that it seeks to add to the unit as well as those it believes should be excluded.

6. Once the issues are presented, the regional director will decide which, if any, voter eligibility questions should be litigated before an election is held.

7. The parties will not be permitted to litigate issues at the hearing that were not raised in their statements of position.

8. Written briefs will be permitted only if the regional director deems them necessary.

9. Only issues necessary to determine whether it is appropriate to conduct an election will be litigated. According to the Board, “litigation of a small number of eligibility and inclusion issues that do not have to be decided before the election may be deferred to the post-election stage. Those issues will often be mooted by the election results.”

10. The parties may file a request for review of the direction of election after the election has been held and do not waive the right to seek such review if they do not file the request before the election. Under the prior rules, the parties waived the right to challenge the direction of election if they did not file a request for review with the NLRB within 14 days of service of the decision.

11. Elections will no longer be automatically stayed to allow the Board to consider any requests for review. Under the prior rule elections were delayed 25-30 days to allow the Board to consider any requests for review.

12. The regional director will provide the details of the election, such as the date, time, place, and type of election and the payroll period for eligibility, in the direction of election. The parties are to address these issues in their Statement of Position and in oral argument at the pre-elec-tion hearing. Previously the details of the election were addressed after the direction of election was issued.

13. The regional director is to set the election date “as early as practicable.”

14. Employers who customarily communicate with employees electronically must distribute a Notice of Election electronically in addition to posting hard copies at the workplace.



15. Within two business days of the direction of election the employer must provide to all other parties and the regional director a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters. The employer must also include, in a separate section of the list, the same information for individuals who will be per-mitted to vote subject to challenge. Previously, the employer provided the names and addresses of eligible voters to the Regional Director, who provided them to the parties. See Excelsior Un-derwear, Inc., 156 N.L.R.B. 1236 (1966).

16. The parties may seek review of all pre- and post-election rulings through a single post-election request, if the election results have not made those rulings moot. The Board will have the discretion to deny review of regional director post-election rulings, under the same standard the Board applied to review of Regional Director pre-election hearing rulings under the old rule.

17. The Board is not required to review aspects of post-election regional director decisions as to which no party has raised an issue, and may deny review consistent with the discretion it uses in reviewing pre-election rulings.

18. Post-election hearings will generally open 21 days after the tally of ballots.

D. Election Observers. The Milchem Rule (Milchem Inc., 170 N.L.R.B. 362), prohibits parties from having sustained conversations with voters waiting to cast their ballots, regardless of the content of the remarks. The Board also prohibits election observers from maintaining a list of eligible voters. Milwaukee Cheese Co., 112 N.L.R.B. 1383. The Board does, however, permit election observers to keep lists of persons they intend to challenge, as long as voters do not generally observe the lists. Although the NLRB previously allowed unions to use low-level supervisors as election observ-ers, the Board reversed its position in Family Services Agency, San Francisco, 331 N.L.R.B. 850 (2000). In Family Services, the Board held that “to avoid the possibility that voters may perceive the participation of a statutory supervisor in the actual balloting process, even in the limited role of an observer, as calling into question the integrity of the election process, we have decided to eliminate this exception and announce a rule prohibiting the use of supervisors as observers.” Observers may challenge voters at the election, but only before the challenged voter’s ballot is placed in the ballot box. If challenged ballots are determinative of the election results, the Regional Director will investigate and determine whether challenged voters are eligible to vote.

E. Election Objections. After the election, the parties have seven calendar days after the tally of the ballots to file election objections concerning conduct that occurred after the union filed its petition. NLRB Rules and Regulations 102.69(c)(2). Only under very limited circumstances may pre-petition conduct be a basis for setting aside results of election. See N.L.R.B. v. New Country Audi, Inc., 448 F. App’x 155, 156 (2d Cir. 2012) (generally an election will not be set aside for pre-petition conduct; “While there is an exception to this general rule—for ‘clearly proscribed conduct likely to have had a significant impact on voting post-petition’” the remarks at issue in that case “could not possibly ‘have had a significant impact on voting.’”); Permanente Medical Group and Kaiser Foundation Hospitals, 358 NLRB No. 88 (2012) (finding that alleged objectionable conduct was “remote in time, predating the critical period by several months and did not directly affect the … unit.”) In Ensign Sonoma, LLC d/b/a Sonoma Health Care Center and Health Care Workers Union, 342 N.L.R.B. 933 (2004), a majority of the Board held that an election must be set aside when the conduct of the Board election agent tends to destroy confidence in the Board’s election process or could reasonably be interpreted as impairing election standards. Under this standard, a majority of the Board concluded that statements of personal opinion by a Board agent may be sufficiently partisan to warrant setting aside the election even if the comments were made to a limited audience and were not accompanied by procedural irregularities or other actions that “reasonably create the appearance that the election procedures will not be fairly administered.”

Under the NLRB’s new rules, a post-election hearing will be held 21 days after the tally of the bal-lots. Under the prior rule, there were no time limits for post-elections hearings. After a post-election



hearing, the hearing officer will prepare a report that will contain his or her recommendations to the regional director on the disposition of objections and/or challenges. Under prior rules, those rec-ommendations were usually made to the Board rather than to the regional director. Within 14 days from the date of issuance, the parties may file with the regional director exceptions to the report and a brief, if desired. A party opposing the exceptions may file an answering brief within seven days from the last due date for filing exceptions. The decision of the regional director will be final unless a request for review is granted. Appeals from post-election is discretionary, unlike under the prior rule, which permitted the parties to file exceptions to the hearing officer’s report with the Board, in all cases in which the hearing officer’s recommendations were made to the Board. The party seeking review of a post-election decision must identify a compelling reason for Board review.

If the union prevails and is certified, the employer must decide whether to accept the certification and commence bargaining, or whether to litigate various issues before the NLRB and/or courts by way of a refusal to bargain charge, commonly referred to as a “technical refusal to bargain.” (Section 8(a)(5)). Historically the Board has decided such a charge summarily against the employer, and the merits of the representational issues are reviewed only by a federal court of appeals. In Sub-Zero Freezer Co., 271 N.L.R.B. 47 (1984), the Board departed from its normal practice and revoked the union’s certification when the employer refused to bargain, based on the employer’s objections to pre-election conduct by the union, which the Board had previously considered in the representation case.

There is no direct review by courts of NLRB representation matters (absent highly unusual circum-stances); employers must refuse to bargain with the certified union in order to get review by the courts of an NLRB decision to certify a union.

F. Appropriate Bargaining Unit. The definition of an “appropriate” bargaining unit is a consider-ation in any representation proceeding. The NLRB, pursuant to Section 9(a) of the Act, will define a bargaining unit and in doing so looks not to the “most” appropriate unit but to “an” appropriate unit. A proposed unit is generally considered appropriate if the employees in the proposed unit share a “community of interest.” In determining the appropriateness of multi-site bargaining units, a finding of a “community of interest” is based upon an assessment of five primary factors: (1) centralized control of labor relations and supervision; (2) similarity of wages and benefits; (3) degree of multi-site employee transfer; (4) similarity of skills, functions, and working conditions; and (5) the parties’ bargaining history. See Cleveland Constr. v. NLRB, 44 F.3d 1010 (D.C. Cir. 1995). See also Jerry’s Chevrolet, Inc., 344 N.L.R.B. 689 (2005) (Board majority ruled that the employer overcame the strong presumption in favor of a single-facility bargaining unit and held that a unit of technicians at all four of the employer’s dealerships was the appropriate unit for bargaining, based primarily on two factors: (1) the facilities in question were located next to each other; and (2) the technicians’ immediate supervisors at each location had extremely limited authority over the employees; key employment-related decisions were made centrally by top management). But see Catholic Health-care West, 344 N.L.R.B. 790 (2005) (In finding that the employer had not rebutted the single-facility presumption, the Board majority focused on the geographical separation (12-20 miles), the fact that temporary transfers between facilities “are the exception rather than the norm,” and the local au-tonomy exercised by supervisors at each facility on “such matters as assignment of work, discipline of employees, preparation of performance appraisals, scheduling, grievance handling, and hiring.”)

1. Micro-units. In Kindred Nursing Centers East v. NLRB, 727 F.3d 552 (6th Cir. 2013), the Sixth Circuit affirmed the Board’s Specialty Healthcare decision establishing a new standard for deter-mining an appropriate bargaining unit in nonacute healthcare facilities (such as nursing homes) and holding that an employer who challenges a union’s proposed bargaining unit as improperly excluding employees must show that the excluded employees share an “overwhelming” com-munity of interest with the petitioned-for employees. The Board’s decision has made it easier for unions to organize smaller units of employees, such as one department, and, according to dissenting Member Hayes, “fundamentally changes the standard for determining whether a petitioned-for unit is appropriate in any industry subject to the Board’s jurisdiction.” See Specialty



Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011) (3-1), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). In affirming the Board’s decision, the Sixth Circuit held that: (a) the Board may depart from its own precedent if it explains its decision and the departure is not arbitrary and capricious; (b) the Board’s clarifi-cation and use of its “overwhelming community-of-interest” standard was clearly explained and therefore not an abuse of its discretion; (c) the Board did not violate the NLRA because it based its decision on factors beyond the extent of the union’s organization efforts; and (d) the Board did not abuse its discretion by choosing to follow an already existing principle through adjudication instead of rulemaking.

In a subsequent decision applying the factors in Specialty Healthcare, the Board overturned a regional director’s determination that a petitioned-for bargaining unit of all women’s shoe sales associates at the employer’s store was appropriate. See The Neiman Marcus Group d/b/a Berg-dorf Goodman, 361 NLRB No. 11 (July 28, 2014). In that case, the sales associates worked in two different shoe departments, which were located on different floors of the store and had different department managers, different floor managers and different directors of sales. Citing Specialty Healthcare, the Board held that the “boundaries of the petitioned-for unit do not re-semble any administrative or operational lines drawn by the Employer.” The Board noted that in Specialty Healthcare it had explained that:

except in situations where there is prior bargaining history, the community-of-in-terest test focuses almost exclusively on how the employer has chosen to struc-ture its workplace. As the Board has recognized, ‘We have always assumed it obvious that the manner in which a particular employer has organized his plant and utilizes the skills of his labor force has a direct bearing on the community of interest among various groups of employees in the plant and is thus an impor-tant consideration in any unit determination.’

In Dpi Secuprint, Inc., 362 NLRB No. 172 (Aug. 20, 2015), the Board held that the employer failed to show that excluded employees shared an overwhelming community of interest with em-ployees in the approved bargaining unit. The Board acknowledged that the excluded employees shared “some community-of-interest factors” with the employees in the petitioned-for unit, such as common supervision and functional integration, benefits and similar pay rates. However, the Board held that other factors demonstrated that the excluded employees did not share an over-whelming community of interest with the petitioned-for employees. For example, the excluded employees worked in a separate department from the petitioned-for employees and their work required greater skill and lengthier training. Additionally, the excluded employees worked differ-ent hours and longer shifts than other employees, were the only nonsupervisory employees who worked weekends, and, unlike other employees, were not sent home when work was slow. The Board rejected the argument of the employer and the dissent that the petitioned-for unit was a “fractured unit” without the excluded employees. The Board stated that this case is different from those cases finding fractured units because the excluded employees “work in a separate depart-ment and share community-of-interest factors distinct from those of the petitioned-for employees. Nothing in the record indicates that any of the employees in the petitioned-for unit have more in common with the offset-press employees [excluded employees] than they do with other peti-tioned-for employees.” Finally, the Board rejected the argument that Board precedent concerning the “traditional lithographic unit” requires the inclusion of offset-press employees [the excluded employees in this case] in the unit. Although the Board acknowledged that Specialty Healthcare does not displace industry-specific presumptions and rules that the Board has developed over time, it held that the traditional lithographic unit is neither a presumption nor a rule but instead is simply entitled to “appropriate weight”.

2. Supervisors Under the NLRA. The Act defines “supervisor” as any individual having author-ity, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their



grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. 29 U.S.C. § 152(11).

This definition has three components. See NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571 (1994). First, the employee must hold the authority to engage in any one of the 12 listed supervisory functions; second, the employee’s “exercise of such authority is not of a merely rou-tine or clerical nature, but requires the use of independent judgment”; and third, the employee’s authority is held “in the interest of the employer.” Id. at 573-74. Note, in August 1999, the NLRB issued a 48-page guidance memo on the supervisory status of nurses, summarizing legal issues and including a checklist format. NLRB Guideline Memorandum on Charge Nurse Supervisory Issues, OM 99-44 (Aug 24, 1999).

In NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706, 714 (2001), the U.S. Supreme Court held that the Board could not find a lack of independent judgment merely because the judgment was based on “professional or technical judgment in directing less-skilled employees to deliver services.” The Court held that “[t]he first five words of this interpretation insert a star-tling categorical exclusion into statutory text that does not suggest its existence.” Id. Accordingly, the Court held that the Board erred when it determined that nurses were not “supervisors” within the meaning of the NLRA.

a. The “Oakwood Trilogy.” Following the U.S. Supreme Court’s decisions in Kentucky River, the Board issued a trilogy of decisions providing long-awaited guidance for determining su-pervisory status under the NLRA. See Oakwood Healthcare, Inc., 348 N.L.R.B. 686 (2006); Golden Crest Healthcare Ctr., 348 N.L.R.B. 727 (2006); Croft Metals Inc., 348 N.L.R.B. 717 (2006). In Oakwood Healthcare, the Board defined the terms “independent judgment,” “as-sign,” and “responsibly direct” as those terms are used in the NLRA’s definition of supervisor. The Board revised its definition of the term “independent judgment” in light of the U.S. Su-preme Court’s decision in Kentucky River that the Board had defined that term too narrowly.

Consistent with the Kentucky River decision, the Board held that the term “independent judg-ment” applies regardless of whether the judgment is exercised using professional or technical expertise. “In short, professional or technical judgments involving the use of independent judgment are supervisory if they involve one of the 12 supervisory functions of Section 2(11).” Oakwood Healthcare, 348 N.L.R.B. 686. The Board held that judgment is not independent if it is dictated or controlled by detailed instructions, whether set forth in company policies or rules, the verbal instructions of a higher authority, or in the provisions of a CBA.

The Board defined “assign” as the “act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e., tasks, to an employee.” Id. Assign refers to the designation of significant overall duties, not the discrete instruction to perform a specific task. In the healthcare setting, the Board held that “assign” encompasses the charge nurses’ responsibility to assign nurses and aides to particular patients. Id.

In defining “responsibly direct” the Board held that the person directing and performing the oversight of the employee must be accountable for the performance of the task by the other, “such that some adverse consequence may befall the one providing the oversight if the tasks performed by the employee are not performed properly.” Id. Thus, to establish accountability for the purposes of responsible direction, the Board held that the employer must show that it delegated to this person the authority to direct the work and take corrective action if needed. Additionally, it must be shown that there is a possibility of adverse consequences to the supervisor if he or she does not properly direct the work or take the necessary corrective ac-tion. The Board also noted that in directing others, this person is carrying out the interests of management. Excluding individuals from the coverage of the Act who are aligned with man-agement is the heart of § 2(11). Id.



In Oakwood Healthcare, the Board held that permanent charge nurses employed by Oak-wood Heritage Hospital exercised supervisory authority within the meaning of § 2(11) and, thus, should be excluded from the bargaining unit of registered nurses (RNs). The Board found that the permanent charge nurses met the definition of “assign” when they assigned nurses to specific patients for whom they would care during their shift. The permanent charge nurses also exercised independent judgment in making such assignments. However, rotating charge nurses did not exercise supervisory authority for a substantial part of their work time, thus they were not considered supervisors.

In Golden Crest Health Care Center, 348 N.L.R.B. 727 (2006), a three-member panel of the Board applied the terms “assign,” “responsibly direct,” and “independent judgment” as defined in Oakwood Healthcare and held that charge nurses employed by Golden Crest Health Care Center were not supervisors under § 2(11) of the Act.

In Golden Crest, which involved the status of charge nurses at a nursing home, the Board determined that the charge nurses did not have actual authority to assign employees; the assistant director of nursing (an undisputed supervisor) performed this duty. While there was evidence that charge nurses could request employees stay beyond the end of their shift, there was no evidence they could require an employee to do so. In some situations, the charge nurse could issue a “mandate” that an employee report to work, but only if the admitted su-pervisors authorized this. The penalty for refusing such a mandate was de minimis, which is another factor the Board considered in finding that the charge nurses did not exercise super-visory authority in assigning employees.

The Board also held that while the charge nurses had the authority to direct nursing as-sistants, they were not accountable for the job performance of the employees they directed. Thus, the charge nurses employed by Golden Crest were not supervisors under § 2(11). Id.

In Croft Metals, 348 N.L.R.B. 717 (2006), also a decision by a three-member panel, the Board held that the lead persons in a manufacturing facility were not supervisors under the standards articulated in Oakwood Healthcare. In this case, the Board determined that the lead persons did not have the authority to “assign” under the Act, but did responsibly direct their line crew. This was not sufficient to establish supervisory status, however, because the Board found that the lead persons did not exercise independent judgment. At most, they were a conduit for the directions given by true supervisors. This decision highlights the fact that even if the worker performs one of the 12 duties in the NLRA’s definition of supervisor, he or she must also exercise independent judgment to be considered a supervisor under the Act.

In Trinity Continuing Care Services d/b/a Sanctuary at McAuley, 359 NLRB No. 162 (July 10, 2013), a three-member panel affirmed a Regional Director’s determination that unit managers did not exercise disciplinary authority in issuing corrective action notices to certified nursing assistants (CNAs) and, accordingly, were not statutory supervisors. The employer operated a skilled nursing home and employed 14 unit managers – two registered nurses (RNs) and 12 licensed practical nurses (LPNs). The unit managers reported to the clinical care coordina-tors. The employer maintained that the unit managers were statutory supervisors based on their role in the discipline, assignment, responsible direction, and evaluation and promotion of CNAs. The Board affirmed the Regional Director’s determination that the employer failed to meet its burden of showing that the unit managers were supervisors, finding that the only relevant evidence presented by the employer suggested that upper management was heavily involved in the discipline process, and that unit managers played a small role without inde-pendent authority. See also Community Education Centers, Inc., 360 NLRB No. 17 (2014) (holding that individuals employed as shift and unit supervisors at a facility engaged in provid-ing social services and drug and alcohol treatment were not statutory supervisors; although they were responsible for overseeing counselors at the facility, the employer did not demon-strate that the shift and unit supervisors responsibly directed the counselors because there



was insufficient evidence of accountability, or adverse consequences for the supervisors if the counselors performed poorly). However, in Allied Aviation Service Company of New Jer-sey, 2013 WL 6252462 (N.L.R.B. Dec. 3, 2013), the Board adopted the Administrative Law Judge’s (ALJ) findings that the training supervisors are statutory supervisors, based on their authority to effectively recommend that probationary employees be retained for employment. Accordingly, the Board sustained the challenges to their ballots and issued a certification of representative.

b. Faculty Members of Academic Institutions. In a case handled by FordHarrison attor-neys, the D.C. Circuit Court of Appeals held that Board failed adequately to explain its deter-mination that faculty members of an academic institution are covered by the NLRA. See Point Park University v. NLRB, 457 F.3d 42 (D.C. Cir. 2006). The court held that the Board must, when applying the test set forth in NLRB v. Yeshiva University, 444 U.S. 672 (1980), explain “which factors are significant and which less so, and why. …” In Point Park, the D.C. Circuit noted that this determination requires an “exacting analysis” of the faculty members’ duties in the context of the academic institution in question. Accordingly, the court remanded the case to the Board so that it can either explain its decision as required by applicable law or reconsid-er its determination. On December 16, 2014, the Board issued a decision in Pacific Lutheran University, 361 NLRB No. 157 (2014), which specifically addressed the standard the Board will apply for determining, in accordance with Yeshiva University, when faculty members are managerial employees. In Pacific Lutheran, the Board revised its analytical framework for determining the managerial status of university faculty, stating, “[u]ltimately, our analysis is designed to answer the question whether faculty in a university setting actually or effectively exercise control over decision making pertaining to central policies of the university such that they are aligned with management.” Id. at *18. In making this determination, the Board ex-amined faculty’s participation in the following areas of decision-making: academic programs, enrollment management policies, finances, academic policies, and personnel policies and decisions, “giving greater weight to the first three areas than the last two.” Id. After conducting this examination in the context of the university’s decision-making structure and administra-tive hierarchy, as well as the nature of the employment relationship of the faculty in issue, the Board found that the nontenure-eligible contingent faculty members the union sought to represent were managerial employees. In July 2015, Point Park announced that is it dropping all appeals and will recognize the union seeking to represent its full-time faculty members.

3. Temporary Employees. The Board has returned to its long-standing precedent that com-bined units of solely and jointly employed employees are multi-employer bargaining units and are statutorily permissible only with the consent of the parties. See H.S. Care LLC, d/b/a/ Oak-wood Care Center, 343 N.L.R.B. 659 (2004). This decision overrules the Board’s 2000 deci-sion in M.B. Sturgis, 331 N.L.R.B. 1298 (2000), which held that bargaining units of solely and jointly employed employees are permissible under the NLRA. In overruling the prior decision, the Board held “the Sturgis Board’s reinterpretation of the concept of an ‘employer unit’ severed that term from its statutory moorings.” The Board further noted this “loss of direction” gave rise to such “anomalous decisions” as Gourmet Award Foods, 336 N.L.R.B. 872 (2001), which applied a CBA between an employer and its employees to employees supplied by a temporary agency.

In Oakwood Care Center, the Board returned to the precedent set in Greenhoot, Inc., 205 N.L.R.B. 250 (1973), and Lee Hospital, 300 N.L.R.B. 947 (1990), and held that the NLRA does not authorize the Board to direct elections in units encompassing the employees of more than one employer absent the consent of the multiple employers. According to Oakwood Care Cen-ter, by ignoring the bright line between employers and multi-employer bargaining units, Sturgis departed from the directives of the NLRA and decades of Board precedent. The Board further stated, “[w]e find that the new approach adopted in Sturgis, however well intentioned, was mis-guided both as a matter of statutory interpretation and sound national labor policy.”



In Browning-Ferris Industries (BFI), the Board substantially changed and expanded its standard for finding a joint-employer relationship under the Act. The previous test had been whether two entities share the ability to directly and immediately control or determine essential terms and conditions of employment such as hiring, discipline, termination, suspension and direction. Un-der the new standard a joint-employer relationship will be found if the alleged joint-employers possess, exercise or simply retain the right, directly or indirectly, to control essential terms and conditions of employment, even if that control is not exercised.

In this case, a Teamsters local sought to organize the employees of a subcontractor (Leadpoint) that provided recycling services at a BFI plant in California. Citing the existing Board standard, the Regional Director of the NLRB had rejected the union’s arguments that BFI is the joint em-ployer of approximately 240 workers provided by Leadpoint under a labor services agreement. The Regional Director’s determination that an election should proceed with only Leadpoint as the employer was appealed to the NLRB.

Applying the new standard, the NLRB ruled that BFI is an employer under common-law prin-ciples and that it shares or codetermines matters governing the essential terms and conditions of employment for Leadpoint’s employees. The NLRB relied on the following factors in reaching that conclusion: hiring, firing, discipline, suspension, direction of work, hours and wages.

The new test is not as expansive as the one proposed by the NLRB’s General Counsel. The NLRB did not adopt a standard based on “industrial realities” rather than the common-law test. The NLRB also did not adopt a standard based on how potential joint-employers structure their commercial dealings with each other. Finally, the NLRB rejected the General Counsel’s “sufficient influence” standard stating “sufficient influence” is not enough if it does not amount to control.

The dissent argued, among other things, that the majority decision exceeds the limits of the NLRB’s statutory authority. The dissent stated “the new joint-employer test fundamentally alters the law applicable to user-supplier, lessor-lessee, parent-subsidiary, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, and contractor-consumer busi-ness relationships” under the NLRA.

4. Acute Care Hospitals. In some instances the Board makes policy via rulemaking as op-posed to adjudication. The Board has published rules defining eight appropriate bargaining units in acute care hospitals. The U.S. Supreme Court held these rules to be valid in 1991. See American Hosp. Ass’n v. NLRB, 499 U.S. 606 (1991). The rules apply to units of six or more em-ployees (smaller units are decided on a case-by-case basis). The rules only apply to acute care hospitals. The eight presumptively appropriate collective bargaining units are: (a) physicians; (b) registered nurses; (c) other professional employees (i.e., pharmacists and occupational thera-pists); (d) medical technicians and LPNs; (e) skilled maintenance workers; (f) clerical workers; (g) guards; and (h) other nonprofessional employees (i.e., housekeeping, food service). As dis-cussed above, the Board has overruled the “pragmatic” or “empirical” community-of-interest test used in determining unit appropriateness in nonacute care health care facilities. See Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011).

VI. UNFAIR LABOR PRACTICES – EMPLOYERA. Interference with § 7 Rights (§ 8(a)(1)). Section 8(a)(1) of the NLRA prohibits interference, restraint, or coercion of employees from exercising rights guaranteed in § 7 of the NLRA. Violations can be independent or derivative, i.e., violation of §§ 8(a)(2)-(5) also constitutes automatic violation of § 8(a)(1).

The U.S. Supreme Court has held that filing a reasonably based but unsuccessful lawsuit is not un-lawful retaliation under § 8(a)(1). See BE&K Construction Co. v. NLRB, 536 U.S. 516 (2002). In this case, BE&K Construction sued a group of unions, claiming, among other things, that the unions vio-lated the antitrust laws by engaging in efforts to delay a construction project that had been awarded



to BE&K (which is a union-free employer). The lawsuit was ultimately unsuccessful. After the lawsuit was dismissed, the Board found that BE&K violated § 8(a)(1) of the Act by filing the lawsuit.

The U.S. Supreme Court invalidated the standard applied by the Board in determining that BE&K violated the Act. In doing so, the Court held that whether reasonably based but unsuccessful law-suits fall outside the First Amendment’s protection presents a difficult constitutional issue. Rather than resolve this difficult issue, the Court adopted a limiting construction of § 8(a)(1) so as to avoid the First Amendment issue. Thus, the Court found that there was nothing in the statutory text indi-cating that § 8(a)(1) must be read to reach all reasonably based but unsuccessful suits filed with a retaliatory purpose and declined to read § 8(a)(1) as doing so. The Court then held that the Board’s standard, which covered all such suits, is invalid. The Court remanded the case to the Board for a decision consistent with its reasoning.

On remand the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the Act, regardless of whether the lawsuit is ongoing or is completed, and regardless of the motive for initiating the lawsuit. See BE&K Construction, 351 N.L.R.B. 451.

The Board held that concerns regarding the potential chilling of the fundamental First Amendment right to petition the government exist whether the Board burdens a lawsuit in its initial phase or after its conclusion. “In sum, we see no logical basis for finding that an ongoing, reasonably-based law-suit is protected by the First Amendment right to petition, but that the same lawsuit, once completed, loses that protection solely because the plaintiff failed to ultimately prevail. Nothing in the Constitu-tion restricts the right to petition to winning litigants.”

In determining whether a lawsuit is reasonably based, the Board applied the test articulated by the U.S. Supreme Court in the antitrust context: a lawsuit lacks a reasonable basis if “no reasonable litigant could realistically expect success on the merits.” Applying this standard to the facts of this case, the Board held that the lawsuit was reasonably based. See also NLRB v. Allied Mech. Servs., Inc., 734 F.3d 486 (6th Cir. 2013) (Board lacked substantial evidence to back its finding that a me-chanical contractor’s unsuccessful lawsuit against several unions interfered with the federal labor law rights of employees).

B. Examples of Independent Violations.

1. Threats versus Freedom of Speech. An employer cannot threaten reprisals because em-ployees engaged in union or protected activities. However, § 8(c) of Act gives the employer the right to free speech as long as the employer expression of free speech contains no threat of reprisal or force or promise of benefit. The U.S. Supreme Court has stated that an employer may, under limited circumstances, make a prediction, but “it must be carefully phrased on the basis of objective fact.” NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). In Gissel, the Court stated:

[a]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effect he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to con-vey a management decision already arrived at to close the plant in case of unionization. See Textile Workers v. Darlington Mfg. Co., 380 U.S. 263, 274 n.20 (1965). If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coer-cion, and as such without the protection of the First Amendment.



In Medieval Knights, LLC, 350 N.L.R.B. 194 (2007), the Board recognized that an employer has significant discretion when explaining the advantages and disadvantages of collective bargain-ing to employees during the course of a representation election. In this case, during the course of a representation campaign, the employer hired consultants to educate employees and man-agement about the election process. A week before the election, the employer held a meeting to explain to employees the collective bargaining process, during which one of the consultants conducted a “mock bargaining session” with a hypothetical employer. During the mock bargain-ing session, the consultant stated that the hypothetical employer did not have to agree to any specific union proposals, that all negotiations are different, and that the bargaining process could take weeks, months, or even more than a year. The consultant also stated “an employer, by giv-ing in to lesser items or addendums on the contract, would be able to stall out the negotiations because they would still be bargaining in good faith but not really agreeing to anything.” The union filed an objection to the hypothetical bargaining session, claiming it gave the impression that bargaining with the employer would be futile.

The Board overruled the objection, recognizing that, absent a threat or promise of benefits, an employer may lawfully explain the advantages and disadvantages of collective bargaining. Thus, the Board found the consultant’s comments were reasonable.

In Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir. 1994), the court overturned a Board decision holding that a company’s discussion of the possibility of closing the plant, laying off employees, and eliminating a retirement thrift plan if workers voted in favor of the union were illegal threats. The court noted that the employer’s remarks were justified and in response to union flyers that were in anticipation of employer threats to close the plant and lay off workers. Furthermore, the letter spoke of “substantial risks” rather than “assertions of certainties,” and to the extent they were predictions they were supported by objective facts. Interestingly, the court noted “if unions are free to use the rhetoric of Mark Antony while employers are limited to that of a Federal Reserve Board chairman, again, the employer’s speech is not free in any practical sense.” Compare Federated Logistics and Operations, 400 F.3d 920 (D.C. Cir. 2005) (statements that bargaining would start from zero, that work would be moved to another facility in the event of a strike, that employees could lose their pensions and 401(k) plans following unionization, and that the union “would strike,” taken together amounted to a threat that the employer might take action on its own initiative to render unionization futile); Gold Kist, Inc., 341 N.L.R.B. 1040 (2004) (employer violated § 8(a)(1) by showing a video and slide show on strike related violence during the course of a union organizing drive); Noah’s Bay Area Bagels, LLC, 331 N.L.R.B. 188 (2000) (comments by a company’s CEO that if the union was certified, the negotiations would “start from zero” and they would “start from the ground up” (while touching the floor with his hand) violated § 8(a)(1)); Cooper Tire & Rubber Co., 340 N.L.R.B. 958 (2003), aff’d, 156 F. App’x. 760 (6th Cir. 2005) (a manager’s statement that a profit-sharing program might not be available in the future to a group of workers if they voted for union representation was objectionable conduct warranting a second election).

Even when there is a certified union, an employer may also advise employees of its opposition to their representation and its opposition to unionization generally. Heck’s, Inc., 293 N.L.R.B. 1111 (1989).

Dissemination of Threats. The Board has changed position on whether threats will presumed to be disseminated. Overruling Springs Indus., Inc., 332 N.L.R.B. 40 (2000), the Board, in a 3-2 decision, held that an employer’s threat to close its facility if employees voted for union repre-sentation will not be presumed disseminated throughout the bargaining unit. Crown Bolt, Inc., 343 N.L.R.B. 776 (2004). In Springs Industries, the Board held that that threats of plant closing are presumed to be disseminated among employees even though the only evidence of dissemi-nation was that the employee who heard the threats “told everyone on break,” which was one employee. In overruling Springs Industries, the Board held that Kokomo Tube Co., 280 N.L.R.B.



357 (1986) (which Springs Industries overruled) represents the better evidentiary rule in requir-ing the party who seeks to rely on dissemination throughout the plant to show it. Thus, the Board returned to the rule set forth in Kokomo Tube. However, the Board’s decision in Crown Bolt only applies prospectively. Thus, the presumption of dissemination set forth in Springs Industries ap-plies to cases pending when Crown Bolt was decided.

2. Interrogation. It is a violation for an employer representative or its agent to question em-ployees about their union activity or the union activity of others, if such questions would tend to interfere with, restrain, or coerce the employee. Rossmore House, 269 N.L.R.B. 1176 (1984) (rejecting a per se rule regarding interrogation and adopting an “under all the circumstances” standard for evaluating whether an interrogation is coercive; determining that interrogation of known union supporter about union sentiments, in the absence of threats or promises was not unlawful), aff’d, 760 F.2d 1006 (9th Cir. 1985).

When determining the coercive tendency of an interrogation, the Board considers several fac-tors, including: (a) the employer’s prior hostility to unionization; (b) the questioner’s identity within the employer’s organization; (c) the nature of the information sought; and (d) the place and methods of interrogation. Observer & Eccentric Newspapers, Inc. v. NLRB, 136 F. App’x 720 (6th Cir. 2005) (unpublished decision) (under this analysis, the employer’s questioning of employee regarding her union sentiments violated the Act) (citations omitted). See also United Services Auto. Ass’n v. NLRB, 387 F.3d 908 (D.C. Cir. 2004) (affirming Board’s determination that employer unlawfully interrogated employee regarding the distribution of fliers critical of recent employee layoffs; employer failed to show a legitimate business reason for the interrogation where it admit-ted it interrogated the employee to determine who prepared the fliers. The court also affirmed the Board’s determination that the employee’s dishonest answers during the unlawful interrogation did not constitute a lawful reason to discharge her.); Michigan Roads Maintenance Co. LLC, 344 N.L.R.B. 617 (2005) (asking employee whether he had heard of the Teamsters’ efforts to organize employees and saying that the employer would shut its doors and sell the equipment if the employees tried to bring the Teamsters in was a ULP).

Questions dealing with union activity on employment application forms or in the hiring process normally violate the Act. Knickerbocker Plastic Co., Inc., 96 N.L.R.B. 586 (1951).

An isolated inquiry regarding what happened at a union meeting, devoid of coercive intent, was held lawful in Herb Kohn Electric Co., 272 N.L.R.B. 815 (1984), enf’d, NLRB v. Herb Kohn Electric Co., 774 F.2d 1169 (8th Cir. 1985). An employer who distributed a letter during a union organizing campaign asking employees to notify management of any “abusive treatment” by organizers, however, was held to be engaging in coercive behavior that violated the NLRA. See Arcata Graphics/Fairfield, Inc., 304 N.L.R.B. 541 (1991); see also Bloomington-Normal Seating Co., 339 N.L.R.B. 191 (2003) (holding that an employer’s speech encouraging its employees to inform the company if the employees were threatened or harassed about signing a union card violated the NLRA because the only type of harassment for which the supervisor solicited re-ports was the protected activity of soliciting union authorization cards), enf’d, 357 F.3d 692 (7th Cir. 2004).

3. Promises of Benefits and/or Granting of Benefits. The U.S. Supreme Court analogized that promising benefits is like a “fist inside a velvet glove.” An employer cannot grant or promise benefits with intent of dissuading employees from voting for the union. NLRB v. Exchange Parts Co., 375 U.S. 405 (1964). Employers are required to proceed as they would have done had the union not been on scene. Desert Aggregates, 340 N.L.R.B. 289, 290 (2003), amended 340 N.L.R.B. 1389 (2003); Duo-Fast Corp., 278 N.L.R.B. 52 (1986). However, granting a pay increase during a critical period is not per se unlawful if an employer can show that its actions were gov-erned by legitimate business considerations. See VT Griffin Services, Inc., 2007 WL 1888363 (June 27, 2007) (citing Desert Aggregates, 340 N.L.R.B. 289, 298) (setting aside election in favor of employer because promise of benefits during organizing campaign violated § 8(a)(1); subse-



quent wage increase was not justified by legitimate business reasons and violated §§ 8(a)(1) and (a)(3)), amended 2007 WL 2088612. But see Reliant Energy Aka Etiwanda LLC, 357 NLRB No. 172 (Dec. 30, 2011) (Promising benefits only to those employees who were not represented by a union or covered by an election petition and withholding benefits from those who were in a union or covered by an election petition, which was communicated to employees during the criti-cal period was objectionable conduct warranting setting aside an election).

Under limited circumstances, an employer can postpone a grant of a wage increase or other benefits to avoid the appearance of vote buying. Uarco, Inc., 169 N.L.R.B. 1153 (1968). The post-ponement announcement must be carefully worded and cannot blame the union for the delay.

The Board has held that it was not objectionable for an employer to announce to its employees at a meeting two days before the election that it would have a dinner for the employees to cel-ebrate the employer’s victory in the upcoming election. Raleigh County Comm’n on Aging, Inc., 331 N.L.R.B. 925 (July 31, 2000).

4. Paycheck Distribution. The NLRB’s rule is that changes in paycheck processes, for purpos-es of influencing a vote, within 24 hours of the scheduled opening of the polls and ending with the closing of the polls, are prohibited and, upon the filing of a valid objection, the election will be overturned, absent a showing that the change was not for political purposes. Kalin Construction Co., Inc., 321 N.L.R.B. 649 (1996). According to the Board, changes in the “paycheck process” encompass four elements: (a) the paycheck itself; (b) the time of the paycheck distribution; (c) the location of the paycheck distribution; and (d) the method of paycheck distribution. In Dallas & Mavis Specialized Carrier Co., 346 N.L.R.B. 253 (2006), the Board held that an employer’s change of its method of paycheck distribution on the first payday after the employer heard about its employees’ union activities violated § 8(a)(3). See also Durham School Services, 360 NLRB No. 86 (2014) (A change in payroll procedures during the critical period is objectionable where it is made in response to an employee request made well before the organizing campaign).

5. Surveillance. Supervisors or agents of the employer cannot improperly watch the union ac-tivities of their employees. Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938). Supervisors and employer agents cannot go to where union meetings are being held to check on employees’ union activities. Supervisors and employer agents cannot create an impression of surveillance or persuade employees to engage in surveillance of other employees’ union activities for the employer. See Rogers Electric, Inc., 346 N.L.R.B. 508, (2006) (holding up highlighted telephone bill created impression of surveillance; while the openness of protected activity may be a relevant fact, the “Board does not require employees to attempt to keep their activities secret before an employer can be found to have created an unlawful impression of surveillance”); Gold Kist, Inc., 341 N.L.R.B. 1040 (2004) (finding employer violated § 8(a)(1) by more closely monitoring employees engaged in union activity, based on statement by supervisor to employee who had publicly distributed union material that he was watching every move she was making).

In Local Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (2008), the Ninth Circuit Court of Appeals upheld an NLRB determination that managers of the Aladdin Hotel and Casino did not engage in unlawful surveillance by interrupting employees who were asking other em-ployees to sign union authorization cards. According to the court, the three-part test adopted by the Board for determining when surveillance becomes coercive was rational and consistent with the statute and, therefore, entitled to deference. This three-part test considers: (a) the duration of the observation; (b) the employer’s distance from its employees while observing them; and (c) whether the employer engaged in other coercive behavior during its observation. The court also noted that the Board “reasonably determined that where the duration of the observation was short and the employer’s behavior was not out of the ordinary, verbally interrupting organizing activity does not necessarily violate § 8(a)1.”

Casual observation of union activities that are taking place out in the open generally does not



violate the Act. Schnadig Corp., 265 N.L.R.B. 147 (1982), Tarrant Mfg. Co., 196 N.L.R.B. 794 (1972) (“[t]he notion that it is unlawful for a representative of management to station himself at a point on management’s property to observe what is taking place at the plant gate is too absurd to warrant comment.”)

Videotaping. In Allegheny Ludlum Corp., 333 N.L.R.B. 734 (2001), the Board held that an em-ployer may not lawfully include the images of an employee in a campaign videotape, where the videotape reasonably tends to indicate the employee’s position on union representation, unless the employee volunteers to participate in the videotape under noncoercive circumstances. The Board set forth the requirements that must be met for an employer lawfully to solicit participation in an anti-union campaign video:

a. The solicitation must be in the form of a general announcement that discloses that the purpose of the filming is to use the employee’s picture in a campaign video, and includes as-surances that participation is voluntary, that nonparticipation will not result in reprisals, and that participation will not result in rewards or benefits;

b. Employees are not pressured into making the decision in the presence of a supervisor;

c. There is no other coercive conduct connected with the employer’s announcement such as threats of reprisal or grants or promises of benefits to employees who participate in the video;

d. The employer has not created a coercive atmosphere by engaging in serious or pervasive ULPs or other comparable coercive conduct; and

e. The employer does not exceed the legitimate purpose of soliciting consent by seeking information concerning union matters or otherwise interfering with the statutory rights of em-ployees.

The Third Circuit Court of Appeals affirmed and held that the Board’s requirements are a “rational resolution of the tension between the employer’s First Amendment Rights and the employee’s right to organize freely.” Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167 (3d Cir. 2002). The court further held that the Board’s five-factor test (it did not address the second portion of the Board’s decision, discussed below) both protects employees from direct solicitations by employers and allows employers to create anti-union campaign videos within the constraints of prior Board deci-sions. Allegheny Ludlum Corp. v. NLRB, 301 F.3d 167, 178 (3d Cir. 2002).

If the employer wishes to include in a campaign videotape “stock” footage of employees filmed for another purpose and wishes to obtain employees’ consent, including having the employees sign a written consent form, the safeguards set forth above must be observed, because a re-quest that employees sign a consent form under those circumstances is equivalent to a request that employees participate in a campaign videotape. Allegheny Ludlum Corp., 333 N.L.R.B. 734 (2001).

The Board further held that an employer may lawfully film employees, and present a campaign videotape including their images, without previously soliciting their consent to be filmed, only if the videotape, viewed as a whole, does not convey the message that the employees depicted therein either support or oppose union representation and the employer complies with the fol-lowing requirements:

a. The employees were not affirmatively misled about the use of their images at the time of the filming;

b. The video contains a prominent disclaimer stating that the video is not intended to reflect the views of the employees appearing in it; and

c. Nothing in the video contradicts the disclaimer. When viewed as a whole, the video must not convey the message that employees depicted therein either support or oppose union representation.



While the employer is not required to obtain employees’ consent to use their images in a video that does not convey a message that the employees either support or oppose the union, if the employer does chose to obtain employee consent for such videos, it may do so only in ac-cordance with the requirements set forth for obtaining consent for use of employee images in anti-union videos. Id. See also N.L.R.B. v. Enter. Leasing Co. Se., LLC, 722 F.3d 609, 617 (4th Cir. 2013) cert. denied sub nom. N.L.R.B. v. Enter. Leasing Co.-Se., LLC, 134 S. Ct. 2902, 189 L. Ed. 2d 855 (2014) (upholding Board’s refusal to set aside election based on employer’s objection that union used a photograph of an employee on its propaganda without the employee’s prior authorization; even if the employee did not authorize the use of his photograph, that would be a mere misrepresentation in the campaign context – there was no evidence of forgery, and nothing in the record to indicate that the eligible employees’ ability to recognize the flyer as campaign propaganda was compromised).

6. Polling. Polling employees concerning whether they want a union may or may not violate the Act. Struksnes Constr. Co., 165 N.L.R.B. 1062 (1967). The purpose of the poll must be to de-termine the truth of a union’s claim of majority status and this must be explained to employees. Employees must be told there will be no retaliation against them and the poll must be a secret ballot. The employer cannot have created a coercive environment. If the employer polls employ-ees and discovers that the union does represent a majority of employees in an appropriate unit, the employer can be forced to collectively bargain with the union without an election.

Caveat. An employer that conducts a poll to determine whether the union enjoys majority sup-port may commit a ULP if it does not have sufficient objective considerations to justify taking the poll. Montgomery Ward & Co., 210 N.L.R.B. 717 (1974). This rule has been rejected by some courts, which would permit such a poll if the employer follows the Struksnes guidelines dis-cussed above. See Mingtree Restaurant v. NLRB, 736 F.2d 1295 (9th Cir. 1984).

7. Restrictions on Union Activity: No Distribution/No Solicitation Rules. The employer may prohibit trespassing, soliciting, and distributing by its employees and outsiders if its rules are properly drafted and applied.

a. Employees.

(1) Verbal Solicitation. Under the NLRA, employees generally have the right to engage in verbal solicitation, so long as it is not during the working time of the solicitor or the em-ployee being solicited. See Our Way, 268 N.L.R.B. 394 (1983). Thus, the Board typically holds that policies that prohibit employee solicitation at all times, or require employees to get a supervisor’s permission to solicit during nonwork times, are overbroad and violate the Act.

(2) Distribution of Written Material. An employer’s no distribution policy may forbid em-ployees from distributing literature during working time. Additionally, a no distribution rule can prohibit distribution of literature in working areas of the facility at all times. See Santa Fe Hotel, Inc., 331 N.L.R.B. 723 (entrances outside a hotel-casino were not working areas for the enforcement of a no distribution rule because only work that was incidental to the hotel’s main function of providing lodging and gambling was performed there; thus em-ployer could not enforce no distribution rule there).

In United Services Auto. Ass’n v. NLRB, 387 F.3d 908, 914 (D.C. Cir. 2004), the D.C. Cir-cuit affirmed the Board’s determination that an employer’s policy prohibiting solicitation and distribution of noncompany materials “at any time in the work area and only during nonworking hours in nonwork areas” was invalid, noting that “under Board precedent, a no-distribution rule using the term ‘working hours’ (as opposed to ‘working time’) is pre-sumptively invalid.” The court also held that the rule was invalid because it had been inter-preted by management as a blanket prohibition of employee solicitation and distribution of noncompany materials even during nonwork time and in nonwork areas.



b. Nonemployee Organizers.

(1) The Employer’s Property. In Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), the U.S. Supreme Court held that an employer lawfully banned nonemployee union organizers from its parking lot. In an effort to unionize employees, the union organizers sought to pass out leaflets and place fliers on windshields of cars parked at the parking lot owned by the em-ployer. The Court stated that the NLRA confers rights only on employees, not on unions or their nonemployee organizers. The Court held that “an employer need not accommodate nonemployee organizers unless the employees are otherwise inaccessible.” Therefore, an employer cannot be compelled to allow distribution of literature by nonemployee organiz-ers on its property, absent this very narrow exception regarding otherwise inaccessible employees. See also Sparks Nugget Inc. v. NLRB, 968 F.2d 991 (9th Cir. 1992) (“The only analysis we are allowed to make, under Lechmere, is to determine whether ‘nonemployee union organizers have reasonable access to employees outside an employer’s property.’ However, this exception … only applies where ‘the location of a plant and the living quar-ters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them.’” Under Lechmere, an employer need not accommodate non-employee picketers on private property if they are trying to reach customers – the inacces-sibility exception for employees does not apply to customers.). Note also the discussion of disparate enforcement in paragraph e, below.

In Fashion Valley Shopping Center, 343 N.L.R.B. 438 (2004), the Board held that a shop-ping center’s rule prohibiting speech urging customers to boycott the shopping center’s stores was an unlawful content-based restriction and not permitted under California law. Accordingly, the Board found that the shopping center violated § 8(a)(1) by maintaining this rule and when it excluded nonemployee union handbillers from the shopping center property. The California Supreme Court subsequently held that the shopping center’s rule violated the right to free speech guaranteed by the California Constitution. Fashion Valley Mall v. NLRB, 42 Cal. 4th 850, 172 P.3d 742 (2007). The mall argued that the California Supreme Court’s interpretation violates its rights under the Fifth and Fourteenth Amend-ments to the U.S. Constitution. However, the D.C. Circuit held that the mall forfeited this argument by failing to raise it previously. See Fashion Valley Mall, LLC v. NLRB, 524 F.3d 1378 (D.C. Cir. 2008).

(2) Public Property. The Board has held that Lechmere does not control in the absence of a private property interest. See Glendale Associates, 335 N.L.R.B. 27 (2001), enf’d, 347 F.3d 1145 (9th Cir. 2003) (noting that it will look to state law to determine if the employer has a sufficient property right to deny access to nonemployee union representatives).

In Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d 601 (D.C. Cir. 2007), the D.C. Circuit upheld a Board determination that the Venetian Casino Resort violated the Act by broad-casting a message over loudspeakers warning nonemployee demonstrators that they were committing criminal trespass, attempting a “citizen’s arrest” of a union official, and asking police to keep demonstrators off the temporary walkway on the resort’s property, which was being used as a sidewalk during construction of the resort.

The conduct at issue in this case occurred while the resort was being constructed. Be-cause of an anticipated increase in traffic due to the new resort, the City of Las Vegas wid-ened the street on which the resort was being built. The widening of the street eliminated the old sidewalk and the resort agreed to build another sidewalk on its property. During construction, a temporary walkway was built on the resort’s property, where the new side-



walk would eventually run. The union demonstration occurred on this temporary walkway.1

In upholding the Board’s determination that the resort’s conduct was a ULP, the D.C. Cir-cuit relied on the Ninth Circuit’s determination that the Venetian had no property right to the sidewalk that would permit it to restrict the demonstrator’s First Amendment rights. (See the discussion at footnote 1.) Thus, the D.C. Circuit held that Lechmere, supra, did not per-mit the resort to deny the demonstrators access to the sidewalk, because Lechmere “al-lows an employer the right to deny access to its premises only where it has a property right to do so.” Venetian Casino Resort, L.L.C. v. NLRB, 484 F.3d at 609. Accordingly, the court affirmed the Board’s ULP findings but remanded the case for a determination of whether the resort’s action in summoning the police was protected activity under the First Amend-ment. On remand the Board held that the employer’s conduct in summoning the police to evict the demonstrators was not entitled to immunity under the Noerr-Pennington doctrine (which provides that, in certain contexts, otherwise illegal conduct is protected by the First Amendment when it is part of a direct petition to the government or incidental to a direct petition). Venetian Casino Resort, 357 NLRB No. 147 (Dec. 21, 2011). Accordingly, the Board held that the employer’s actions in summoning the police violated § 8(a)(1). Id. The D.C. Circuit subsequently vacated this decision, holding that the Venetian’s request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway qualifies as a direct petition to government subject to protec-tion under the Noerr-Pennington doctrine. Venetian Casino Resort, L.L.C. v. N.L.R.B., 793 F.3d 85, 89 (D.C. Cir. 2015). However, while “genuine petitioning is immune from” § 8(a)(1) liability under the Noerr–Pennington doctrine, “sham petitioning is not.” Venetian Casino Resort, 793 F.3d at 92 (citing BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002)). The court remanded the case to the Board for it to determine whether the Venetian’s attempt to summon the police was a sham petition.

c. Temporary Employees or Subcontractors. In New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), enf’d, New York-New York, LLC v. NLRB, 676 F.3d 193 (D.C. Cir. 2012) the Board addressed whether employees of a contractor that does business on the contracting employer’s property have rights to conduct organizing activities on that property. In addressing this issue, the Board adopted “an access standard that reflects the specific sta-tus of such workers as statutorily protected employees exercising their own rights under the NLRA, but not employees of the property owner.” The Board held that such workers do not enjoy the same access rights as employees of the property owner, nor should they be treated as “nonemployees.” Under this standard,

the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law). Thus, any justi-fication for exclusion that would be available to an employer of the employees who sought to engage in Section 7 activity on the employer’s property would also potentially be available to the nonemployer property owner, as would any justification derived from the property owner’s interests in the efficient and pro-ductive use of the property.

The Board left open the possibility that in some instances property owners will be able to

1 In a separate lawsuit, the resort filed a complaint in federal court seeking declaratory and injunctive relief against Clark County officials, the Las Vegas Police Department, and the union, claiming that their conduct converted the Venetian’s private property into a public forum in violation of the Takings Clause of the Fifth Amendment. The Ninth Circuit rejected this argument, holding that the walkway performed an essential public function, thus the Venetian could not lawfully restrict the demonstrators’ exercise of their First Amendment rights. See Venetian Casino Resort v. Local Joint Executive Bd., 257 F.3d 937 (9th Cir. 2001).



demonstrate that they have “legitimate interest in imposing reasonable, nondiscriminatory, narrowly-tailored restrictions on the access of contractors’ off-duty employees, greater than those lawfully imposed on its own employees” but expressed no view on which such restric-tions might be lawful.

d. Employees from Other Work Locations. In First Healthcare Corp. v. NLRB, 344 F.3d 523 (6th Cir. 2003), the Sixth Circuit upheld a Board decision that it was unlawful for a company to deny off-duty union-represented employees who worked at one of the company’s other locations access to the company’s nonunion facilities for organizing purposes. The Board found that off-site and on-site employees share common interests such as wages, benefits, and other workplace issues that can be addressed by concerted action and concluded that the organizational rights of off-site employees give them access to the outside, nonworking areas of the employer’s other properties except where limited by legitimate business reasons. The Sixth Circuit upheld the Board’s decision finding it had a reasonable basis in law and that substantial evidence supported the Board’s conclusion that the employer violated § 8(a)(1) by denying offsite employees seeking to exercise their § 7 organizational rights access to its facilities. See also ITT Indus. Inc. v. NLRB, 413 F.3d 64 (D.C. Cir. 2005) (NLRB reasonably found that employer’s denial of parking lot access to off-site employees seeking to engage in union organizational activities was a ULP).

e. Disparate Enforcement. Employers may not enforce their no solicitation/no distribution policies more stringently against unions or employees engaged in protected activity under § 7 of the Act than other employees or organizations.

Charitable Solicitations. The Board will not find unlawful disparate treatment if the nonunion solicitation the employer condones amounts to no more than a small number of isolated be-neficent acts. Hammary Mfg. Corp., 265 N.L.R.B. 57, fn. 4 (1982).

f. Adoption of No Solicitation Rule During Organizing Campaigns. In 1984, the Board ruled that the adoption of a no solicitation rule during a union organizing drive was not per se unlawful. Brigadier Indus., 271 N.L.R.B. 656 (1984). The Board may be more likely to chal-lenge a policy promulgated during a drive, however. See Fairfax Hosp. v. NLRB, 14 F.3d 594 (4th Cir. 1993) (unpublished decision) (hospital had unlawfully promulgated and disparately enforced new solicitation and distribution rules during an organizing drive; nurses were told not to distribute pro-union literature while hospital supervisors were permitted to hand out anti-union literature in the same area). But see Delta Brands, Inc., 344 N.L.R.B. 252 (2005) (the mere presence of an overbroad no solicitation rule in a much larger document, with no showing that any employee was affected by the rule’s existence, no showing of enforcement, and no showing of any mention of the rule was not sufficient to set aside a union election).

g. Email Policies. In Purple Communications, Inc., 361 NLRB No. 126 (2014), the NLRB overturned Register Guard, 351 NLRB 1110 (2007), enf’d in part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard the Board had held that employees have no statutory right to use their employers’ email system for Section 7 purposes. In a sharply di-vided 3-2 decision, the majority held that Register Guard improperly elevated property rights of employers over employees’ rights. The Board determined that emails in the workplace are a means for employees to effectively communicate with each other at work about union orga-nization and other terms and conditions of employment.

The policy at issue stated in part that the company’s computer and email system should be used for business purposes only. It also stated:

Employees are strictly prohibited from using the computer, internet, voicemail and email system, and other Company equipment in connection with any of the following activities:

…



2. Engaging in activities on behalf of organizations or persons with no profes-sional or business affiliation with the Company.

…

5. Sending uninvited email of a personal nature.

The union challenged the policy arguing that it was unlawful on its face. The ALJ ruled in fa-vor of the company, relying on Register Guard. Overruling the ALJ, the Board majority held: “we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

The Board stated that its decision was “carefully limited.”

First, it applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by dem-onstrating that special circumstances make the ban necessary to maintain pro-duction or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.

The decision did not address email access by nonemployees or any type of electronic com-munications systems other than email. Subsequently, in Cellco P’ship d/b/a Verizon Wire-less, 2015 WL 5560242 (Sept. 18, 2015), an NLRB judge held that an employer rule pro-hibiting the use of company resources (emails, fax machines, computers, telephones, etc.) to solicit or distribute at any time was unlawful under Purple Communications, finding that Purple Communications applies to both solicitation and distribution. The judge also found that the employer’s rule prohibiting employees from using company systems in a way that could embarrass the employer violated Purple Communications and was overly broad because it identified “embarrassment” as a cause of discipline in the use of email, instant messaging, intranet or internet. “Thus, on its face, this language chills Section 7 activity and violates Sec-tion 8(a)(1) of the Act.”

8. Prohibitions on Wearing Union Insignia. In NLRB v. Malta Constr. Co., 806 F.2d 1009 (11th Cir. 1986), the court held that firing an employee for wearing union insignia on a hard hat during a union campaign was a ULP. The dissent argued that NLRB gave “short shrift” to the employer’s property interest argument and the fact that the employer had uniformly prohibited the wearing of decals or stickers on company equipment.

In Hertz Corp., 305 N.L.R.B. 487 (1991), however, the Board upheld an employer’s policy bar-ring employees from wearing union pins on their uniforms. In Hertz, the only pins the employees could wear were nametags, company promotional tags, and award pins. Acknowledging that Hertz employees had been observed wearing Christmas and St. Patrick’s day pins, the Board held that such lapses “in an otherwise consistent application of a detailed uniform policy do not persuade us that there was inconsistent and discriminatory enforcement.” See also Eastern Omni Constructors v. NLRB, 170 F.3d 418 (4th Cir. 1999) (reversing the NLRB and holding that an employer legally restricted employees from wearing unauthorized union decals on their hard hats); W San Diego, 348 N.L.R.B. 372 (2006) (upholding a hotel’s right to prohibit the wearing of two-inch by two-inch HERE buttons in certain guest areas because it interfered with the em-ployer’s image and “special atmosphere,” and in the kitchen because of the employer’s legitimate health and safety concerns (food contamination)).

Additionally, in Communication Workers of America v. Ector County Hosp., 467 F.3d 427 (5th Cir. 2006), the Fifth Circuit held that under the balancing test in Pickering v. Board of Education, 391 U.S. 563 (1968), the interest of the employer (a county hospital district, which was also a political



subdivision of the state of Texas) in promoting the efficiency of the public service it performs by means of its uniform nonadornment policy outweighs the interest of its employees in wearing a “Union Yes” button on their uniforms while on duty. The court found that wearing the “Union Yes” button while at work touched on a matter of public concern only “insubstantially” and “in a weak and attenuated” sense. The court also noted that the “speech” in this case occurred only while the employee was on duty and in uniform. The court further held that the employer has a significant interest in having a uniform nonadornment policy applicable to its employees, noting that “[t]o allow employees to adorn their uniforms with objects of their own choosing undermines the very purposes that uniforms serve.” Further, the court found it “reasonable for the hospital to conclude that its service to patients and their families is enhanced by their not being invol-untarily subjected to having messages on matters of public concern indiscriminately conveyed to them on the uniforms worn by on duty Hospital employees.” The court found the employer’s policy was content and viewpoint neutral and noted that neither the U.S. Supreme Court nor the Fifth Circuit has ever invalidated a uniform anti-adornment policy such as the one in this case. The court concluded that as a matter of law, “the Pickering balance favors the Hospital, which may legitimately conclude that its uniform non-adornment policy furthers its mission by neutrally fostering a tranquil and peaceful, as well as a neat, clean and care focused, atmosphere for its patients and visitors.”

9. Breaches of Confidentiality. Generally, an employee is entitled to use, for self-organization-al purposes, information and knowledge that comes to his or her attention in the normal course of work. Ridgely Mfg. Co., 207 N.L.R.B. 193 (1973), enf’d, 510 F.2d 185 (1975). But see Asheville School, Inc., 347 N.L.R.B. 877 (payroll accountant’s publication of wage information to other employees was unprotected because his job afforded access to confidential payroll information not otherwise accessible to employees). If the employer has established a workplace rule con-cerning confidentiality of some of this information, the employee’s interest in using the informa-tion must be weighed against any legitimate business justification the employer has in keeping the information confidential. Jeannette Corp. v. NLRB, 532 F.2d 916 (3d Cir. 1976). If, however, an employer does not treat the information as confidential, an employee who comes across the information openly or in the regular course of work may use the information for self-organization purposes. L.G. Williams Oil Co., 285 N.L.R.B. 418 (1987).

In contrast, if an employee steals or even “happens upon” information that the employer consid-ers confidential, and that employees are prohibited from disclosing, the courts may not protect the employee’s use of such information. See, e.g., Texas Instruments v. NLRB, 637 F.2d 822 (1st Cir. 1981); NLRB v. Knuth Bros., Inc., 537 F.2d 950 (7th Cir. 1976). Furthermore, an employee who takes confidential wage information from the employer’s private files and then lies about the source of the information could be lawfully terminated, despite the existence of an unlawful workplace rule forbidding employee discussion about wages. NLRB v. Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990).

C. Domination or Interference with Labor Organization (§ 8(a)(2)). An employer cannot domi-nate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. The applicability of this provision to efforts to establish European style works councils is addressed earlier in this Chapter.

1. Recognition of Union Representing Minority of Employees. An employer cannot recog-nize and deal with a union representing a minority of the employer’s employees even if it does so in good faith (an exception is created for the construction industry). International Ladies’ Gar-ment Workers’ Union, AFL-CIO v. NLRB, 366 U.S. 731 (1961).

2. Dues Check-off Authorization. An employer cannot check off union dues to a union without an employee having signed a valid check-off authorization. Western Auto Associate Store, 143 N.L.R.B. 703 (1963).



3. Closed Shops. It is unlawful to enter into a closed shop agreement or illegal hiring hall in which an employer requires all employees to be union members when they are hired. Meat Cut-ters Local 421 (Great Atlantic & Pacific Tea Co.), 81 N.L.R.B. 1052 (1949).

4. Employee Involvement Committees. It is illegal for an employer to dominate or interfere with the formation or administration of any labor organization or to contribute financial or other support to it. A labor organization is any organization of any kind, or any agency or employee rep-resentation committee or plan, in which employees participate and that exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. § 2(5) of the Act.

In Electromation, Inc., 309 N.L.R.B. 990 (1992), aff’d, Electromation, Inc. v. NLRB, 35 F.3d 1148 (7th Cir. 1994), the NLRB upheld an administrative law judge’s decision that the employer un-lawfully dominated employee action committees by proposing them, organizing them, providing a place for them to meet, paying the employees for time lost from work, and providing them with pens, paper, and a calculator. The employer had set up the employee committees as a communications device to address serious morale problems arising out of a change of the em-ployer’s absentee and attendance program. The employer had a lengthy history of meeting with employees face-to-face to address work-related issues. The committees were advisory only and were formed without any knowledge of union organizing activities. Nevertheless, the Board held that the employer imposed on the employees its own unilateral form of bargaining. The Board ordered Electromation to “immediately disestablish” the committees and stop assisting and/or supporting them.

The Board’s decision indicated that such violations of the NLRA will be determined based on each case’s particular facts and circumstances, and that this decision does not reflect a holding that labor-management “employee involvement committees” are per se unlawful. See also Ead Motors Eastern Air Devices, Inc., 346 N.L.R.B. 1060, 346 N.L.R.B. 1060 (2006) (“Have Your Say” committee was unlawful because it dealt with employer and was dominated by management.).

In Crown Cork & Seal Co., 334 N.L.R.B. 699 (2001), the NLRB held that an employer’s use of a management system that delegated substantial authority to employees did not involve unlawful management domination of an employee committee. The Board found that the committees in this case were not labor organizations because they essentially had supervisory authority that is traditionally given to an individual supervisor. Thus the committees made decisions that were reviewed by higher levels of management, as individual supervisors would do in a more tradi-tional setting. The Board found that this type of decision-making, subject only to review by higher levels of management, did not constitute “dealing with” management. Accordingly, the commit-tees were not labor organizations within the meaning of the NLRA.

Factors to consider in evaluating an employee involvement committee include:

a. Is the purpose of the committee to deal with the company? An employer may not be deal-ing with a committee when the purpose of the committee is to investigate facts, generate ideas, and elicit suggestions for transmission to management. Airstream v. NLRB, 877 F.2d 1291 (6th Cir. 1989), order entered by Airstream v. NLRB, 914 F.2d 255 (6th Cir. 1999); NLRB v. Streamway, 691 F.2d 288 (6th Cir. 1982).

b. The subject matter of the dealings must concern grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. Therefore, issues relating to product qual-ity, customer satisfaction, and production efficiency may not be considered terms and condi-tions of work.

c. Some courts have held that the employees serving on an employee involvement com-mittee must be acting in a representational capacity in order for the committee to be a labor organization.



Until there is further Board or court guidance, employers may consider the following actions short of ceasing all employee involvement committees:

a. Deal with employees as a whole, rather than through representational committees.

b. Deal with specific employees on an individual, or perhaps committee basis, because of the specific talents of the selected individuals, with specific instructions that the employees are not acting as representatives of other employees.

c. Make certain that any committees established are only for the purpose of facilitating up-ward and downward communication of information on ideas without any “negotiation” or deal-ing with the employees in regard to the ideas.

d. Employee groups may discuss quality, production, or efficiency issues, but they may not discuss terms or conditions of employment, i.e., wages, hours, and working conditions.

e. Deal with employees in brainstorming sessions.

f. If the employee group has authority to make the decision as opposed to recommendations to management, this is arguably not illegal.

D. Discrimination Against Employees Based on Union Membership (§ 8(a)(3)). An employer cannot discriminate against employees (or prospective employees) in order to encourage or dis-courage membership in a labor organization. An employee cannot be discharged because of law-fully engaging in union activity – i.e., signing a union card, properly soliciting other employees to sign a union card, engaging in a lawful strike. Radio Officers’ Union v. NLRB, 347 U.S. 17 (1954).

Additionally, the Fourth Circuit has enforced a Board order finding that the employer violated the Act by discharging a union “salt” for alleged dishonesty. See Integrated Elec. Servs. v. NLRB, 217 F. App’x 248 (4th Cir. 2007) (unpublished decision). In this case, the “salt” distributed a CD during working hours, which contained information about union wages and benefits. An employee gave a copy of the disc to Integrated’s management and agreed to sign a statement saying that the “salt” had given him the disc during work time. Management asked the “salt” whether he had distributed the disc during work time and, when he responded in the negative, terminated him for dishonesty. The Board filed a ULP and the company argued it discharged the employee because he lied about distributing union material during working time, and that such a lie amounted to dishonesty under the company’s work rules. The company supported its position by presenting evidence of a previous situation in which an employee was terminated for dishonesty in the form of lying. In response, the employee claimed that he did not distribute any union material during working time, and supported his assertion by producing a daily log that detailed his organizing activity. The Board credited the employee’s testimony over that of the company witnesses, distinguished the situation involving the other employee terminated for dishonesty, and found the reason for his termination was pretextual. The Board found that the company had violated §§ 8(a)(1) and (3) of the NLRA, and ordered it to offer the employee reinstatement, with back pay and benefits. The Fourth Circuit found that the Board’s decision was supported by “substantial evidence” and therefore enforced the Order.

Wright Line Test. The Board utilizes the following test in discharge cases: first the General Counsel (prosecutor) is required to make a prima facie showing of sufficient evidence to support the infer-ence that protected conduct was a motivating factor in the employer’s decision. If this is established, the burden shifts to the employer to show that it would have taken the same action even in the ab-sence of the protected conduct. NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), overruled in part, Department of Labor v. Greenwich Collieries, 512 U.S. 267 (1994); Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enf’d, 662 F.2d 899 (1st Cir. 1981). See also Citizen Investment Services Corp. v. NLRB, 430 F.3d 1195 (D.C. Cir. 2005) (affirming determination under Wright Line analysis that employee was discharged for protected concerted activity when he complained about compensation package of employees in his job category); NLRB v. Rockline Indus., Inc., 412 F.3d 962 (8th Cir. 2005) (enforcing NLRB determination that employer’s suspension and termination of employee was ULP; disparate treatment of employee in discipline and termination compared to



treatment of employees who did not support union was substantial evidence that discipline and ter-mination were motivated by anti-union animus). But see Framan Mechanical Inc., 343 N.L.R.B. 408 (2004) (reversing the ALJ’s decision and finding that the employer met its burden of showing that it would have laid off the employees in question even in the absence of their union activities; recogniz-ing the employer’s right to adjust its workforce to attempt to recoup losses on a construction project).

1. Analytical Framework for Refusal-to-Hire Cases. In FES (a Division of Thermo Power), 331 N.L.R.B. 9 (2000), enf’d, 301 F.3d 83 (3d Cir. 2002), the Board set forth an analytical framework to be used when an employer is accused of refusing to hire or consider applicants because of their union affiliation. In a refusal-to-hire case, the General Counsel must show that: (a) the em-ployer was hiring or had plans to hire when it refused to hire the applicants; (b) the applicants had experience or training relevant to the requirements of the position, or the employer had not adhered to the requirements for the position, or the requirements were a pretext for discrimina-tion; and (c) the employer’s anti-union feelings contributed to the decision not to hire the appli-cants. If the General Counsel meets this burden, the employer must show that it would not have hired the applicants regardless of their union affiliation. FES, 331 N.L.R.B. 9, NLRB v. FES, 301 F.3d at 87. See also Masiongale Electrical-Mechanical v. NLRB, 323 F.3d 546 (7th Cir. 2003) (approving the NLRB’s burden-shifting framework described in FES in refusal-to-hire cases).

2. Availability of Positions. In Fluor Daniel, Inc. v. NLRB, 332 F.3d 961, 968-69 (6th Cir. 2003), the Sixth Circuit upheld the NLRB’s determination that the employer committed a ULP by refus-ing to hire a number of paid union organizers, but held that the standard set forth in FES for refusal-to-consider claims, as applied in Fluor Daniel by the NLRB, conflicted with Sixth Circuit case law, which specifically held that violations of § 8(a)(3) can only occur when an employer is hiring for the position(s) at issue. The Sixth Circuit stated that “in order to prove a violation of § 8(a)(3), the General Counsel needs to show (a) that there is anti-union animus; and (b) the oc-currence of a covered activity, for example a particular discharge or a particular failure to hire.” Id. at 975 (citing NLRB v. Fluor Daniel, 161 F.3d 953 (6th Cir. 1998) (Fluor Daniel II)). Once the General Counsel proves these elements, the employer must show that the employees in ques-tion would not have been hired or considered even in the absence of their union affiliation. Id. The court restated dicta from Fluor Daniel II, “[t]here is no interference with, restraint, or coercion of applicants in the exercise of their protected rights when an employer, even with anti-union ani-mus, rejects applicants who are in fact unqualified or for whose particular services the employer simply has no need,” and remanded the case to the NLRB to determine whether, as required for a violation of § 8(a)(3), there were jobs available for the five applicants for whom the NLRB found failure to consider violations. See also Kelly Construction of Indiana, Inc., 333 N.L.R.B. 1272 (2001) (the employer’s reasons for refusing to hire 27 union applicants, which included a prefer-ence for employees accustomed to earning the wages it would pay for the positions sought, were legitimate reasons for not hiring the applicants).

3. Analytical Framework for Salting Cases. The Board recently recognized that unions often submit batch applications by “salts” uninterested in actually working for the targeted employer, solely to generate meritless ULP charges. Accordingly, the Board held that such individuals are not protected by the NLRA’s prohibition on discrimination. See Toering Electric Co., 351 NLRB No. 18 (Sep. 29, 2007) (“[O]nly those individuals genuinely interested in becoming employees can be discriminatorily denied that opportunity on the basis of their union affiliation or activity; one cannot be denied what one does not genuinely seek.”)

Thus, the Board modified the FES framework by requiring the General Counsel to prove, as part of the prima facie case, that: (a) there was an application for employment; and (b) the application reflected a genuine interest in becoming employed by the employer. Id. As to the first component, the General Counsel must introduce evidence that the individual applied for employment with the employer or that someone authorized by that individual did so on his or her behalf. As to the second component (genuine interest in becoming employed), the employer must put at issue the genuineness of the applicant’s interest through evidence that creates a reasonable question



as to the applicant’s actual interest in going to work for the employer. Id. Such evidence could include, but is not limited to, evidence that the applicant:

• refused similar employment with the respondent employer in the recent past;

• incorporated belligerent or offensive comments on his or her application;

• engaged in disruptive, insulting, or antagonistic behavior during the application process; or

• engaged in other conduct inconsistent with a genuine interest in employment.

Similarly, evidence that the application is stale or incomplete may, depending on the circum-stances, indicate that the applicant does not genuinely seek to establish an employment relation-ship with the employer. Id.

If the employer presents such evidence, the General Counsel must then prove by a preponder-ance of the evidence that the individual in question was genuinely interested in seeking to estab-lish an employment relationship with the employer. Thus, the ultimate burden of proof as to the § 8(a)(3) status of the alleged discriminatee-applicant rests with the General Counsel.

In Toering, the Board explained that if, at a hearing on the merits, the employer puts forward evi-dence reasonably calling into question the applicant’s genuine interest in employment, the Gen-eral Counsel must prove the applicant’s genuine interest by a preponderance of the evidence in order to prove that the applicant is an employee within the meaning of § 8(a)(3). An employer’s motivation for making an alleged discriminatory hiring decision does not become relevant until the General Counsel satisfies his burden of proof on the applicant’s statutory employee status. “This is consistent with the extant FES test, under which proof of an employer’s union animus in refusing to hire an applicant is irrelevant if the General Counsel fails to meet his initial burden of proving that the employer was hiring or had concrete plans to hire at relevant times, or that the alleged discriminatees had the relevant experience or training.” Id.

4. Remedies for “Salts.” The traditional remedy for a refusal to hire violation includes a back pay and reinstatement order. Ferguson Electric Co., 330 N.L.R.B. 514 (2000) enf’d 242 F.3d 426 (2d Cir. 2001) (salts/discriminatees are eligible for back pay), overruled in part by Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (May 31, 2007). The General Counsel has the burden of proving the reasonableness of the back pay amount, including the back pay period. Over time, the Board has developed a rebuttable presumption that the back pay period should continue indefinitely from the date of the discrimination until a valid offer of reinstatement has been made. Id. at *4. However, in Oil Capitol, the Board held that this presumption does not apply in “salt-ing” cases and “creates undue tension with well-established precepts that a back pay remedy must be sufficiently tailored to expunge only actual, not speculative, consequences of a ULP.” Id. Thus, in Oil Capitol, the Board held that in a salting case, the General Counsel must, as part of his existing burden of proof, present affirmative evidence that the salt/discriminatee would have worked for the employer for the back pay period claimed. Such evidence may include, but is not limited to, the salt/discriminatee’s personal circumstances, contemporaneous union policies and practices with respect to salting campaigns, specific plans for the targeted employer, instructions or agreements between the salt/discriminatee and union concerning the anticipated duration of the assignment, and historical data regarding the duration of employment of the salt/discrimina-tee and other salts in similar salting campaigns. Id.

E. Discrimination Based on Employee Charge or Testimony (§ 8(a)(4)). Section 8(a)(4) pro-hibits an employer from discharging or otherwise discriminating against an employee because the employee filed charges or gave testimony under the Act. Retaliation against an employee because employee gave an affidavit to the NLRB is also prohibited. Rock Hill Convalescent Center, 226 N.L.R.B. 881 (1976), enf’d, 585 F.2d 700 (4th Cir. 1978). At one time the Board held that the burden is on the employer to show compelling reasons why employees should not be given time off from work to attend an NLRB hearing. E.H. Ltd., 227 N.L.R.B. 1107 (1977), rev’d, 600 F.2d 930 (D.C. Cir. 1979). The Board subsequently overruled E.H. Ltd. and returned to its decision in Standard Pack-



aging, 140 N.L.R.B. 628 (1963), which placed the burden of proof on the General Counsel. Ohmite Mfg. Co., 290 NLRB No. 130 (1988).

VII. INTERFERENCE WITH PROTECTED CONCERTED ACTIVITIES Section 8(a)(1) also prohibits acts against employees who engage in protected concerted activities. These activities need not be union related. Section 7 of the Act gives employees the right to “engage in other concerted activities [besides union activity] for the purpose of collective bargaining or other mutual aid or protection.” Protected concerted activities involve employees joining in concert to affect wages, hours, and other terms and conditions of employment. Examples:

• Strikes (i.e., refusals to work) to protest wage rates. NLRB v. Ridgeway Trucking Co., 622 F.2d 1222 (5th Cir. 1980).

• Refusal to work overtime on a particular occasion. Polytech, Inc., 195 N.L.R.B. 695 (1972).

• Refusal to work because of heat or cold. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

• Complaints about dangerous working conditions. Wray Electric Contracting, Inc., 210 N.L.R.B. 757 (1974).

• Criticizing management and company policies during a group meeting. NLRB v. Caval Tool Div., Chromalloy Gas Turbine Corp., 262 F.3d 184 (2d Cir. 2001) (employee engaged in protected concerted activity when she spoke up during a group meeting and challenged the employer’s application of a new break policy).

A. “Chilling” Employees’ § 7 Rights. Under Board case law, where an employer promulgates work rules “likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is a ULP, even absent evidence of enforcement.” Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998), enf’d mem., Lafayette Park Hotel v. NLRB, 203 F.3d 52 (D.C. Cir. Nov. 26, 1999). In making this assessment, the Board engages in a two-step inquiry. See Guardsmark, LLC v. NLRB, 374 U.S. App. D.C. 360, 374 (D.C. Cir. 2007) (citing Martin Luther Memorial Home, 343 N.L.R.B. 646, 646-47 (2004)). First, the Board examines whether the rule explicitly restricts § 7 activity. If so, the rule violates the Act. Id. However, if nothing in the rule explicitly restricts § 7 activity, the Board “moves to the inquiry’s second step, under which the rule violates the Act if it satisfies any one of the following three conditions: ‘(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.’s” Id. In Guardsmark, the court noted that if the rule explicitly restricts § 7 activity, it violates the Act regardless of whether it has been applied to restrict the exercise of § 7 rights. See also NLRB v. Northeastern Land Svs., 645 F.3d 475 (1st Cir. 2011) (provision stating that “Employee … understands that the terms of this employment, including compensation, are confidential to Employee and the NLS Group. Disclosure of these terms to other parties may constitute grounds for dismissal” was unlawfully overbroad because employees would reasonably construe the language to prohibit § 7 activity).

The Board has held that a variety of different types of conduct may chill an employee’s § 7 rights.

1. Prohibiting employees from discussing their paychecks with other employees. Double Eagle Hotel & Casino v. NLRB, 414 F.3d 1249 (10th Cir. 2005) (affirming Board order in part, to the extent it prohibited casino employees from discussing tip sharing rule around customers; also affirming order holding that employer’s confidentiality policy, which prohibited employees from discussing wages and working conditions, violated employees’ § 7 rights).

2. Implementing overly broad confidentiality policies. See Cintas Corp. v. NLRB, 482 F.3d 463 (D.C. Cir. 2007) (employer’s confidentiality rule violated federal labor law because it could be construed to prohibit employees from discussing the terms and conditions of their employ-ment, even though it did not expressly prohibit employees from doing so and even though the



employer never used it to prohibit § 7 activity because “‘mere maintenance’ of a rule likely to chill § 7 activity” can amount to a ULP “even absent evidence of enforcement”); NLRB v. Inter-Disci-plinary Advantage, Inc., 312 F. App’x 737 (6th Cir. 2008) (affirming the Board’s conclusion that the employer’s broad confidentiality rule prohibiting employee discussions about any all matters related to their employment violates § 8(a)(1) despite the fact that the rule was not enforced as to union activities) (unpublished decision); Design Technology Group, 361 NLRB No. 79 (Oct. 31, 2014) (on remand to the Board after the Supreme Court’s decision in Noel Canning vacated its earlier decision (published at 359 NLRB No. 96), the Board reconsidered the ALJ’s determina-tion and the vacated Board decision, and, agreeing with the rationale in the vacated decision found that the employer’s policy prohibiting employees from disclosing “personnel information” and “wages and compensation” chilled employees’ § 7 rights); Quicken Loans, Inc., (June 21, 2013) (on remand to the Board after the Supreme Court’s decision in Noel Canning vacated its earlier decision (published at 359 NLRB No.141) the Board reconsidered the ALJ’s decision and the Board’s vacated decision and, agreeing with the rationale set out in that decision, adopted the ALJ’s order striking a provision in an employment agreement that required employees to maintain the confidentiality of all proprietary and confidential information where it defined con-fidential information as “personnel lists, rosters, personal information of co-workers, managers, executives and officers; handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses and email addresses” because the provision would violate employees’ § 7 rights); Flex Frac Logistics v. NLRB, 746 F.3d 205 (5th Cir. 2014) (uphold-ing Board’s determination that confidentiality agreement prohibiting disclosure of “financial” and “personnel information” was unlawful under the Act. The Fifth Circuit adopted the NLRB’s reason-ing that the terms used in Flex Frac’s confidentiality agreement, including “financial information” and “personnel information,” “necessarily includes wages and thereby reinforces the likely infer-ence that the rule proscribes wage discussion with outsiders.” As such, the court held that Flex Frac’s employees would reasonably construe the confidentiality policy to prohibit discussion of wages in violation of § 8(a)(1)). See also MCPc, Inc., 360 N.L.R.B. No. 39 (February 6, 2014) (the employer violated § 8 by maintaining an overly broad confidentiality rule in its employee hand-book. The confidentiality rule stated that “dissemination of confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.” The Board found that employees reasonably could construe this rule to prohibit discussion of wages or other terms and conditions of employment with their co-workers.).

3. Prohibiting negative conversations. See KSL Claremont Resort, Inc., 344 N.L.R.B. 832 (2005) (rule that prohibited negative conversations would reasonably be construed by employ-ees to bar them from discussing with their coworkers complaints about their managers that affect working conditions, thereby causing employees to refrain from engaging in protected activities and was, therefore, illegal); Laurus Technical Institute, Case No.10-CA-093934 (Dec.11, 2013) (ALJ found employer’s “no gossip” policy restricted employees’ § 7 rights; the ALJ found that the policy would prohibit virtually all conversations between employees without their supervisors present which would effectively prohibit all § 7 activity). In Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living, 2015 WL 3484608 (June 2, 2015), adopted 2015 WL 4509115 (July 15, 2015), the ALJ held that the employer’s rule prohibiting unprofessional, disruptive, disrespect-ful, abusive, rude, aggressive, degrading, or improper behavior directed toward any residents, visitors or co-workers fell within the category of an overbroad rule prohibiting protected discus-sions with co-workers because employees would reasonably construe it as encompassing § 7 activities. However, the ALJ found that the employer’s confidentiality policy, which prohibited employees from “gossiping or exaggerating about a co-worker or resident” was lawful because it did not mention managers. The ALJ noted it was similar to rules prohibiting gossip that the Board found lawful in Hyundai Am. Shipping Agency, Inc. 357 NLRB No. 80 (Aug. 26, 2011), and Lytton Rancheria of California d/b/a Casino San Pablo 361 NLRB No. 148 (Dec. 16, 2014).



4. “Courtesy” requirements in a policy. In Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012), the Board held that a “courtesy” rule in the employee handbook violated the Act be-cause employees would reasonably believe that it prohibited statements of protest or criticism of the employer, including those protected by the NLRA. The policy stated: “Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” 358 NLRB No. 164. The Board found the rule unlawful because employees “would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statements--whether to coworkers, supervisors, managers, or third parties who deal with the Respondent--that object to their working conditions and seek the support of others in improving them.”

5. Prohibiting employees from making complaints to employer’s clients. See Guardsmark, LLC v. NLRB, 475 F.3d 369 (D.C. Cir. 2007) (affirming Board’s determination that employer’s rule prohibiting employees from registering complaints with any representative of the client “explicitly trenches upon the right of employees under § 7 to enlist the support of an employer’s clients or customers regarding complaints about terms and conditions of employment”); Bowling Transpor-tation, Inc. v. NLRB, 352 F.3d 274 (6th Cir. 2003) (employees engaged in protected concerted ac-tivity when they complained to the company’s only customer about the company’s safety bonus program and complained about their discharges).

6. Forbidding employees from opening their paychecks while at work. Wilson Trophy Co. v. NLRB, 989 F.2d 1502 (8th Cir. 1993).

7. Requiring Employees to Keep Workplace Investigations Confidential. In The Boeing Co., 362 NLRB No. 195 (Aug. 27, 2015), the Board held that an employer rule directing employ-ees involved in internal investigations not to discuss the case with other employees (except the employees conducting the investigation and their union representative) was unlawful. The Board held, “an employer may prohibit employee discussion of an investigation only when its need for confidentiality with respect to that specific investigation outweighs employees’ Section 7 rights.” The Board held that the employer’s generalized concerns about protecting the integrity of all of its investigations was insufficient to justify its “sweeping” policy. “Rather, in weighing the compet-ing interests, the Respondent was obligated to determine whether the particular circumstances of an investigation created legitimate concerns of witness intimidation or harassment, the de-struction of evidence, or other misconduct tending to compromise the integrity of the inquiry.” (citing Banner Health System, 362 NLRB No. 137 (June 26, 20215)). The Board held that the employer’s “blanket approach clearly failed to satisfy this requirement and thus interfered with employees’ Section 7 rights.”

B. “Concerted” Activity. In Meyers Industries, Inc., 281 N.L.R.B. 882 (1986), aff’d, 835 F.2d 1481 (D.C. Cir. 1987) (Meyers II), and 268 N.L.R.B. 493 (1984) (Meyers I), the Board reversed prior decisions holding that even activities of an individual employee may be protected under the Act if the employee’s action directly involved the furtherance of rights that benefit fellow employees and reestablished that “concerted” activity requires that an employee be acting in concert with others, or on the authority of others, and not solely by and on behalf of the employee himself, to be protected by the Act. See also Citizens Investment Services Corp. v. NLRB, 430 F.3d 1195 (D.C. Cir. 2005) (employee engaged in protected concerted activity when he complained about the company’s com-pensation of senior financial analysts; evidence showed he represented other employees’ concerns about the compensation package and not just his own concerns).

The mere assertion by an employee that others will join in a work stoppage is not enough to show actual authority on behalf of others. Mannington Mills, Inc., 272 N.L.R.B. 176 (1984). Even when there has been concerted conduct with others, the employee’s activity is not “protected” unless



it is shown that the employer knew of the involvement of others. Center Ridge Co., 276 N.L.R.B. 105 (1985); compare with Every Woman’s Place, Inc., 282 N.L.R.B. 413 (1986), enf’d, 833 F.2d 1012 (6th Cir. 1987) (social worker discharged after calling the Wage/Hour Division to question her employer’s holiday practices was found to be engaged in protected concerted activity because her action “was a logical outgrowth of the original protest by three employees”).

The U.S. Supreme Court held in NLRB v. City Disposal Systems, 465 U.S. 822 (1984), that even an individual who acts alone in protesting a condition of employment is engaged in protected activity if she or he is reasonably invoking a right under a CBA. (This is the so-called “Interboro Doctrine.”) As explained by the Board in Meyers II, this is because the individual’s action is an extension of the “concerted” action that produced the agreement. See Interboro Contractors, 157 N.L.R.B. 1295 (1966), enf’d, 388 F.2d 495 (2nd Cir. 1967). The invocation of the contract right must also be both reasonable and honest. ABF Freight Sys., Inc., 271 N.L.R.B. 35 (1984).

Seeking co-workers’ assistance in raising sexual harassment complaint. In Fresh and Easy Neighborhood Market, Inc., 361 NLRB No. 12 (Aug. 11, 2014), the Board held that an employee who sought assistance from her co-workers in raising a complaint of sexual harassment with her employer was engaged in concerted activity for the purpose of mutual aid or protection. The Board held that the employee’s conduct in approaching her co-workers to seek their support of her efforts to report an incident of sexual harassment to the employer “would constitute concerted activity.” She did not have to engage in further concerted activity to ensure that her initial call for group action retained its concerted character. However, in that case, the Board held that the employer did not violate § 8(a)(1) when it questioned the employee about why she obtained witness statements from her co-workers and instructed her not to obtain additional statements. The Board then overruled its earlier decision in Holling Press, 343 NLRB No. 45 (Oct. 15, 2004), in which it held that an employee did not act for mutual aid or protection when she sought a colleague’s assistance in connection with her sexual harassment complaint. In Fresh and Easy, the Board held that Holling Press is an “out-lier” having departed from Board and court precedent without providing a coherent reason for doing so. Thus, the Board overruled Holling Press and held that “an employee seeking the assistance or support of his or her coworkers in raising a sexual harassment complaint is acting for the purpose of mutual aid or protection. This decision applies equally to cases where, as here, an employee seeks to raise that complaint directly to the employer, or, as in Holling Press, to an outside entity.” But see Kingman Hosp., Inc. d/b/a Kingman Reg’l Med. Ctr. 2015 WL 737952 (Feb. 20, 2015) (although discussions of employee discipline are protected, there is “no authority for the proposition that they are automatically deemed concerted without going through the analysis elucidated in Fresh & Easy Neighborhood Market”; where there was no link between the employee’s conversation with another employee and matters concerning the workplace or employees’ interests as employees, but instead the conversation concerned matters unique to the employee and her situation, the discussion was not protected concerted activity).

Employees who refuse to work because of a protected concerted protest cannot be discharged; rather, they must be treated as economic strikers. While economic strikers may be permanently replaced when engaged in an economic strike, if a striking employee offers to return to work prior to being permanently replaced, the employee must be offered the job back.

C. Employee Conduct May Cause Loss of § 7 Protection. The Board has held that an employee who engages in otherwise protected activity loses the protection of the Act if he or she engages in egregious or opprobrious conduct. See Atlantic Steel Co., 245 N.L.R.B. 814, 816-17 (1979) (setting forth four factors to be considered in determining when an employee has lost the protection of the Act: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the outburst; and (4) whether the outburst was, in any way, provoked by the employer’s ULP). But see Kiewit Power Constructors Co. v. NLRB, 652 F.3d 22 (D.C. Cir. 2011) (comments by two employees to their supervisors that things would “get ugly” if they were disciplined and that the supervisor “bet-ter bring [his] boxing gloves” were not physically threatening and, thus, were not opprobrious com-



ments that lost the protection of the Act); Beverly Health & Rehabilitation Services, 346 N.L.R.B. 1319 (2006) (nature of outburst – where employee told another employee to “mind [her] f--king business” during discussion of grievance – weighed in favor of protection); Stanford N.Y., LLC, 344 N.L.R.B. 558 (2005) (employee did not lose § 7 protection because profane outburst was provoked by supervisor’s unlawful threats to fire him if he did not declare himself ineligible for union represen-tation); Human Services Projects, 358 NLRB No. 2 (Feb. 6, 2012) (employee who was unlawfully terminated nevertheless lost his right to reinstatement after a threatening post-termination encoun-ter with a former coworker).

D. Social Media Issues. The NLRB General Counsel has issued two reports summarizing cases involving social media issues, which are available on the Board’s web site at http://www.nlrb.gov. According to a press release issued by the Board, the report underscores two points: (1) employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees; and (2) an em-ployee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees. The Board has affirmed an ALJ decision in one of the cases discussed.

1. Social Media Policies. In several cases, the Board has found that broadly worded social media policies violate the Act. See, e.g., Dish Network Corp., 359 NLRB No. 108 (April 30, 2013) (policy prohibiting employees from “making disparaging or defamatory comments” about the company, its employees, officers, directors, customers, partners or its products and services chilled employees’ § 7 rights). In the August 18, 2011 Memorandum (discussed above), the Gen-eral Counsel noted that certain provisions in social media policies could violate employees’ § 7 rights. Generally, the Board found provisions to be overbroad if they contained vague or ambigu-ous language and did not contain limiting language that would inform employees the restrictions were not intended to apply to § 7 activity.

In Durham School Services, 360 NLRB No. 85 (2014) (3-2), a Board majority adopted the ALJ’s finding that election results should be set aside in part because of the employer’s objectionable off-duty access and “social networking” policies. The social networking policy advised employ-ees to “limit contact with parents or school officials,” and to “keep all contact appropriate,” and stated that “communication with coworkers should be kept professional and respectful, even outside work hours,” warning that “employees who publicly share unfavorable … information related to the company or any of its employees or customers … may be subject to investigation and possibly discipline.” The Board adopted the ALJ’s determination that the policy, which did not indicate what the employer considered appropriate or inappropriate conduct, or what is consid-ered professional and respectful, or what constitutes unfavorable information was “unreasonably broad and vague.” The policy was invalid because employees could reasonably interpret the language as restraining them in their § 7 right to communicate freely with fellow employees and others regarding work issues and for their mutual aid and protection.

2. Discharge for Comments on Social Media. In Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (Dec. 14, 2012), the NLRB affirmed the decision of an ALJ, which held that a nonprofit organization unlawfully discharged five employees who had posted comments on Facebook in response to a co-worker’s complaint about their job performance. The Board held that “there should be no question that the activity engaged in by the five employees was concerted for the ‘purpose of mutual aid or protection’ as required by Section 7.” The Board also held that the ac-tions of the five employees were concerted as defined by the relevant case law because they “were taking a first step towards taking group action to defend themselves against the accusa-tions they could reasonably believe [the co-worker] was going to make to management.” Id. The Board also found that the discussions were protected under the NLRA because it has “long held that Section 7 protects employee discussions about their job performance,” which is what the Facebook comments addressed. In Design Technology Group, d/b/a/ Bettie Page Clothing, 361



NLRB No. 79 (Oct. 31, 2014),2 the Board held that terminating employees for Facebook posts complaining about and disparaging a supervisor and criticizing the employer’s lack of response to their complaints about the supervisor violated the Act because engaging in protected con-certed activity and their Facebook complaints “were complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment.”

However, in Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012), the Board upheld the termination of an employee whose Facebook posts mocked an accident on his employer’s property. The employee in this case, Robert Becker, was a salesman for Knauz BMW. In June 2010, Knauz BMW was preparing for its BMW Ultimate Drive (Event), including the launch of the redesigned BMW 5-Series. At a pre-Event meeting, the sales manager informed the sales force that the dealership was bringing out a hot dog cart in case customers got hungry. At least two salespeople, including Becker, griped that the dealership should offer better food for the Event. During the Event, Becker took pictures of the hot dog cart and posted them on his Facebook page along with some sarcastic comments a few days later.

Knauz BMW is located in an autopark adjacent to Knauz Land Rover. A few days after the BMW Event, there was an accident at the Land Rover dealership. Becker was at work when the ac-cident took place. He quickly grabbed his camera and took pictures of the accident. The same day he posted the Event pictures on his Facebook page, he also posted his pictures of the ac-cident along with some mocking comments. Knauz learned about Becker’s Facebook postings the next day, and soon after terminated him for the accident-related postings. Becker filed a ULP charge alleging that he was fired for engaging in protected concerted activity under the NLRA. The NLRB General Counsel claimed that Becker’s Event-related posts about the hot dog cart represented employee complaints related to their compensation. One component of salesperson compensation was customer satisfaction, and the General Counsel’s theory was that the deal-ership’s choice of food could have a negative customer impact. Therefore, alleged the General Counsel, terminating Becker for his Event-related posts was retaliation for protected concerted activity.

The case was tried before a NLRB administrative law judge in July 2011. One of the attorneys who represented Knauz BMW at the hearing is a partner at FordHarrison. The judge upheld Becker’s termination, finding that Becker was fired because of his offensive, unprotected acci-dent-related Facebook postings. The judge also ruled, however, that Becker’s postings about the hot dog cart constituted protected concerted activity. The General Counsel appealed Becker’s termination, while Knauz BMW appealed the judge’s finding that the Event-related postings were protected under the Act.

The Board unanimously adopted the judge’s conclusion that Knauz BMW lawfully terminated Becker for his accident-related Facebook postings. The Board passed on whether the food-related posts were protected under the Act because its ruling on the termination made that issue unnecessary to its disposition of the case. See also World Color (USA) Corp., 360 NLRB No. 37 (Feb. 12, 2014) (employee’s posts (with unspecific criticisms about the company and unspeci-fied comments about the union over a period of five or six months) were not protected activity; General Counsel had failed to demonstrate that the supervisor’s statement was directed at, or in response to, either actual or suspected protected concerted activity), review granted in part on other grounds, cause remanded by World Color (USA) Corp., 776 F.3d 17 (D.C. Cir. 2015).

3. Loss of Protection – Applicability of Atlantic Steel. In Three D, LLC, D/B/A/ Triple Play Sports Bar and Grill, 361 NLRB No. 31 (Aug. 22, 2014), the Board held that an employer vio-lated the Act by discharging two employees for their participation in a Facebook discussion in which they complained about perceived errors in the employer’s tax withholding calculations. The employer did not dispute that the conversations were protected by § 7, but argued that one

2 Earlier decision at 359 NLRB No. 96 was vacated by the Supreme Court’s decision in Noel Canning; reconsidering the ALJ’s de-termination and the vacated Board decision, the Board agreed with the rationale in the vacated decision.



employee’s statement calling an owner an “asshole,” and the other employee’s “like” of this state-ment lost protection under the Act because they were defamatory or disloyal. The Board held that Atlantic Steel was inapplicable because the factors in that case were developed to balance the rights of employees under § 7 against an employer’s interest in workplace discipline in the context of an in-person discussion. Instead, the Board applied the standard established in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953), and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). Under these standards, “‘employee communications to third parties in an effort to obtain their support are protected where the communication indicated it is related to an ongoing dispute between the employees and the employers and the commu-nication is not so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.’” Three D, LLC, 361 NLRB No. 31 (citing MasTec Advanced Technologies, 357 NLRB No. 17, slip op. at 5 (2011)). Applying those standards, the Board found that the comments were not so disloyal as to lose the Act’s protection under the Jefferson Standard and its progeny. “The comments at issue did not even mention the Respondent’s products or services, much less disparage them. Where, as here, the purpose of employee communications is to seek and provide mutual support look-ing toward group action to encourage the employer to address problems in terms or conditions of employment, not to disparage its product or services or undermine its reputation, the com-munications are protected.” Id. The Board also found that they were not defamatory. Under the standards established by Linn, the employer was required to prove that “the comments were ma-liciously untrue, i.e., were made with knowledge of their falsity or with reckless disregard for their truth or falsity.” Id. The Board found no evidence the statements were maliciously untrue and the characterization of the employer as an “asshole” was an opinion, not a statement of fact. Thus, these statements did not lose protection under the standard set forth in Linn. The Board also found that the employer’s internet/blogging policy violated the Act because employees would reasonably “construe the policy to prohibit the type of protected Facebook posts that led to the unlawful discharges.”

4. Union Has No Duty to Disavow Threats Posted on Facebook Page. In Amalgamated Transit Union, Local Union No. 1433, 360 NLRB No. 44 (NLRB 2014), the Board adopted the decision of an ALJ, which held that a union that maintained a Facebook page did not have a duty to disavow threatening comments posted by union members. In this case, Veolia Transpor-tation drivers were represented by the Amalgamated Transit Union Local 1433 and contracted with the city of Phoenix, Arizona, to provide public bus service. In March 2012 the union waged a six-day strike against Veolia, during which union members began posting messages on the union’s Facebook page. The union had set up the Facebook page a few months earlier and only accepted “friend” requests from members in good standing. Contract negotiations in early 2012 were difficult, and a strike seemed like a very real possibility. Two months before the strike began, a rank-and-file union member posted the following messages on the union’s Facebook page:

THINKING of crossing the line. THINK AGAIN!;

THINK that the union will protect you. They may have to represent you, but will they give it 100%;

THINK of how your family and neighbors will feel when we hold a informational picket outside YOUR HOUSE. YES we can, and YES we will.

On the second day of the strike the union’s vice president posted a message on the union’s Facebook page indicating that he had identified the hotel where Veolia’s replacement drivers were being housed. This elicited at least one ominous comment from a rank-and-file member: “Can we bring the Molotov Cocktails this time?” At least one other member “liked” this comment.

The NLRB Acting General Counsel issued a complaint alleging that the union violated § 8(b)(1) of the Act by failing to disavow the “will they give it 100%” and “Molotov Cocktail” comments, among others. The Acting General Counsel did not allege that the members who posted the messages were the union’s agents. Instead, the Acting General Counsel’s theory was based on



a line of cases holding that a union is responsible for the coercive acts of its pickets on the picket line if it does not effectively disavow them.

The ALJ rejected the Acting General Counsel’s theory and recommended dismissal of the “dis-avow” allegations. The Acting General Counsel contended that the union’s Facebook page was an extension of the picket line, but the judge disagreed noting for one thing that the Facebook page was created months before the union went on strike. The judge also drew a distinction between an actual picket line and cyberspace. A picket line confronts an employee with a real decision – whether to cross or not. The coercive effect of a picket who threatens an employee is immediate. Cyberspace offers privacy and is nonconfrontational.

In an interesting twist to his decision, the judge also held that the Communications Decency Act of 1996 (CDA) required dismissal of the complaint’s “disavowal” allegations. This was a some-what unexpected aspect of the judge’s opinion because none of the parties in the case had discussed the CDA in their briefs. The judge pointed to § 230(c)(1) of the CDA which states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided.” The judge held that the union was the “provider” of the Facebook page, and thus the rank-and-file employees who posted messages – even threatening mes-sages – were “publishers or speakers” for whom the union had no responsibility.

E. Rules Prohibiting Harassment. In Martin Luther King Memorial Home, Inc. d/b/a/ Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646 (2004), the Board held, in a 3-2 decision, that an em-ployer’s rules prohibiting “abusive and profane language,” “harassment,” and “verbal, mental, and physical abuse” were lawful because they were intended to maintain order in the employer’s work-place and did not explicitly or implicitly prohibit § 7 activity. In reaching this conclusion, the Board agreed with the Court of Appeals for the District of Columbia’s decision in Adtranz ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001), which held that a rule prohibit-ing “abusive language” is not unlawful on its face.

The Board noted that in Adtranz, the court recognized that an employer has a legitimate right to establish a “civil and decent work place” and to adopt rules banning profane language because employers are subject to civil liability under federal and state law should they fail to maintain a work-place free of harassment. The Board further noted that the court recognized that abusive language can constitute verbal harassment triggering liability under state or federal law. The Board agreed with the Adtranz court that there is no basis for a finding that a reasonable employee would interpret a rule prohibiting abusive language as prohibiting § 7 activity. Id. Further, the Board held that verbal abuse and profane language are not an inherent part of § 7 activity. Id. The Board also held that the question of whether particular employee activity involving verbal abuse or profanity is protected by § 7 turns on the specific facts of each case and that, absent the application of a rule prohibiting abusive language to an employee’s protected activity, the Board will not presume the rule is unlaw-ful. For the same reasons, the Board found the employer’s rule prohibiting harassment to be lawful.

In Lutheran Heritage, the Board applied the standard set out in Lafayette Park Hotel, 326 N.L.R.B. 824 (1998), enf’d, 203 F.3d 52 (D.C. Cir. 1999), in which the Board held that to determine whether the mere maintenance of certain work rules violates the NLRA, the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their § 7 rights. See also Com-munity Hospitals of Central California v. NLRB, 335 F.3d 1079 (3d Cir. 2003) (overruling a Board determination that provisions in an employee handbook, which prohibited, among other things, in-subordination and disrespectful conduct, were a ULP. The court rejected the Board’s argument that the term “other disrespectful conduct” could be interpreted to apply to union organizing activity. The court held that the term applied to incivility and outright insubordination.).

F. Off-Duty/No Access Rules. In Tri-County Medical Center, 222 N.L.R.B. 1089 (1976), the NLRB developed a three-part test to determine the validity of an employer’s off-duty access rule. Under this test, such policies are lawful only if the policy: (1) limits access solely to the interior of the facil-



ity and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. The Board recently has issued decisions expanding the access rights of off-duty employ-ees. In St. John’s Health Center, 357 N.L.R.B. No. 170 (2011), the Board found that the employer (a hospital) violated the Act by prohibiting off-duty employees from accessing the hospital building except to “attend Health center sponsored events, such as retirement parties and baby showers.’’ A Board investigation found that the employer allowed employees on the premises for various rea-sons but enforced the rule against off-duty employees who were there to campaign on behalf of the union. The Board found that the policy was unlawful because it did not uniformly prohibit access by off-duty employees seeking entry for any reason. Additionally, in Durham School Services, 360 NLRB No. 85 (Apr. 25, 2014), the Board adopted the ALJ’s determination that the employer’s off-duty access rule, which stated, “Off-duty employees should not enter (except for legitimate business reasons) any Company facility not open to the general public and are prohibited from interfering or causing a disturbance with an on-duty employee’s performance of his/her work duties” did not meet the Tri-County test. The Board found that the rule was objectionable and warranted setting aside the election.

However, in Sodexo America LLC, 361 NLRB No. 97 (Nov. 19, 2014), after its earlier decision (358 N.L.R.B. No. 79 (2012)) was vacated by the Supreme Court’s Noel Canning decision, the Board held that a hospital’s no-access policy did not violate Section 8(a)(1). The policy stated, ‘‘[o]ff-duty employees are not allowed to enter or reenter the interior of the Hospital or any other work area out-side the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.” The issue in this case was whether the policy violated the third prong of the Tri-County test – “applies to off-duty access for all purposes, not just union activity.” The Board held that the exception for off-duty employees visiting patients or receiving medical care did not make the policy unlawful under the Tri-County test. “We decline as a matter of policy to require that health care em-ployers limit their employees’ access to medical care, or to friends and family members receiving medical care, in order to comply with the Tri-County requirements.” The Board also held that the policy’s “exception” for conducting hospital-related business did not render the policy unlawful under Tri-County. The Board noted that the policy expressly defined hospital-related business narrowly, as “the pursuit of the employee’s normal duties or duties as specifically directed by management.” The Board stated that this is not really an exception but a clarification that employees who are not on their regular shifts, but are nevertheless performing their duties as employees under the direction of management, may access the facility. Thus, the provision allowing access for hospital-related busi-ness did not violate the Tri-County requirement that a valid no-access rule must apply to off-duty access for all purposes.

VIII. UNFAIR LABOR PRACTICES - UNIONA. Restraint or Coercion of Employees in Exercising § 7 Rights (§ 8(b)(1)(A)). Section 8(b)(1)(A) prohibits restraint or coercion against employees in the exercise of their § 7 rights. This is the equivalent of an employer § 8(a)(1) violation, except that interference is not prohibited, only restraint and coercion. There is also no derivative § 8(b)(1)(A) violation. National Maritime Union of America, 78 N.L.R.B. 971 (1948), enf’d, 175 F.2d 686 (2d Cir. 1949).

Examples:

1. Fining an employee who has resigned from the union. NLRB v. Textile Workers, Local 1029, Granite State Joint Board, 409 U.S. 213 (1972).

2. Fining a member who refused to recognize an illegal strike. Retail Clerks Union, Local 1179, 211 N.L.R.B. 84 (1974), enf’d, 526 F.2d 142 (9th Cir. 1975); Communications Workers of America (Verizon Communications), 340 N.L.R.B. 18 (2003) (finding union committed ULP when it fined members for refusing to work mandatory overtime), enf’d, 114 Fed. App’x 493 (3d Cir. 2004).



3. Engaging in violent acts on a picket line. Union Nacional de Trabajadores, 219 N.L.R.B. 405 (1975), aff’d, 540 F.2d 1 (1st Cir. 1976). See also, e.g., United States v. Dougherty, 2015 WL 1455908, at *6 (E.D. Pa. Mar. 31, 2015) (criminal case addressing appropriate sentences for union members convicted of crimes in connection with union membership, discussing labor law history and noting, “unions have a right to strike and to picket, but that right does not permit acts of violence, vandalism, or intimidation”).

4. Preventing ingress and egress from a picketed facility. Union Nacional de Trabajadores, 219 N.L.R.B. 414 (1975), enf’d, 540 F.2d 1 (1st Cir. 1976).

5. Threats of bodily harm because of union considerations. Rockville Nursing Center, 193 NLRB No. 149 (1971), overruled on other grounds, Beverly Enterprises, 313 N.L.R.B. 491, (1993).

6. Processing only union members’ grievances when a union is the collective bargaining rep-resentative of an employer’s employees. Peerless Tool and Engineering Co., 111 N.L.R.B. 853 (1955), enf’d, NLRB v. Die & Tool Makers Lodge No. 113, 231 F.2d 298 (1956).

7. Superseniority for stewards can be unlawful if goes beyond layoff and recall. Dairylea Cooper-ative, Inc., 219 N.L.R.B. 656 (1975), enf’d, NLRB v. Milk Drivers and Dairy Employees Local 338, 531 F.2d 1162 (2d Cir. 1976). See also Local 1384, United Auto., Aerospace & Agr. Implement Workers of Am., UAW, 756 F.2d 482, 490 (7th Cir. 1985) (affirming Board’s position that super-seniority provisions are lawful only if they are limited to employees who, as agents of the union, must be on the job to accomplish their duties directly related to administering the collective-bargaining agreement; superseniority provisions for union officials whose duties do not require their presence at the employer’s location are unlawful).

8. Photographing employees during the union’s distribution of campaign literature. See Randell Warehouse of Arizona, Inc., 347 N.L.R.B. 591 (2006) (“In the absence of a valid explanation con-veyed to employees in a timely manner, photographing employees engaged in Section 7 activity constitutes objectionable conduct whether engaged in by a union or an employer.”)

B. Restraining or Coercing Employer (§ 8(b)(1)(B)). Section 8(b)(1)(B) prohibits a union from restraining or coercing an employer in the selection of representatives for purpose of collective bar-gaining or adjustment of grievances. A union cannot fine a supervisor/member for his or her actions in enforcing a contract on behalf of the employer. Additionally, the union cannot fine a supervisor/member for crossing a picket line to perform normal supervisory functions. Florida Power & Light Co. v. IBEW, 417 U.S. 790 (1974). The union can, however, fine a supervisor/member who crosses picket line and performs unit work during a lawful strike.

C. Causing Employer to Violate § 8(a)(3) (§ 8(b)(2)). Section 8(b)(2) prohibits a union from at-tempting to or causing an employer to violate § 8(a)(3) of Act. A union cannot force an employer in a right-to-work state to discharge nonunion employees because they are not union members. A union cannot operate an exclusive hiring hall giving preference to union members in referral. Plumbers and Pipe Fitters Local 32 v. NLRB, 50 F.3d 29 (D.C. Cir. 1995); J. Willis & Son Masonry, 191 N.L.R.B. 872 (1971). A union cannot cause an employer to discharge an employee because that employee opposed the union during a union organizing attempt or because she or he opposed an incum-bent union official. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 204 N.L.R.B. 700 (1973), enf’d, 506 F.2d 1321 (D.C. Cir. 1974).

D. Secondary Boycott (§ 8(b)(4)). Section 8(b)(4) covers a union’s “secondary boycott” and pro-hibits a labor organization from engaging in, inducing, or encouraging employees and from threat-ening, coercing, and restraining any person (includes employers, private or public) for a proscribed object. Even though this is the so-called secondary boycott section of the Act, primary action can violate § 8(b)(4)(A), (C), or (D). However, secondary action is needed to violate § 8(b)(4)(B). To be secondary, the action must be directed against an entity (the “neutral”) other than the one with whom the labor organization has the dispute (the “primary”).



An employer may prevent “affinity group shopping” by union members. See Pye v. Teamsters Lo-cal Union No. 122, 875 F. Supp. 921 (D. Mass. 1995), aff’d, 61 F.3d 1013 (1st Cir 1995) (rejecting union members’ claim that they were “just shopping” when they entered the mall for mass shopping sprees of small ticket items and holding that this practice, known as “affinity group shopping,” may constitute an unlawful secondary boycott under the NLRA).

A single asset purchase may satisfy “doing business” for purposes of § 8(b)(4)(ii)(B). See Taylor Milk v. International Brotherhood of Teamsters, 248 F.3d 239 (3d Cir. 2001) (“a continuing long-term negotiation over the purchase of a new asset from a neutral third party meets the ‘doing business’ requirements” of § 8(b)(4)(ii)(B)).

Actions that might be unlawful if taken through picketing may be lawful if no picketing occurs and handbilling takes place instead. See Edward J. DeBartolo Corp. v. Bldg. and Constr. Trades Council (Florida Gulf Coast), 485 U.S. 568 (1988).

Common Situs Picketing. Common situs picketing may be lawfully accomplished if the picketing is strictly limited to times when the situs of dispute is located on the secondary employer’s premises; at the time of the picketing, the primary employer (that is, the employer with whom the labor orga-nization has the dispute) is engaged in its normal business at the situs; the picketing is limited to places reasonably close to the location of the situs; the picketing discloses clearly that the dispute is with the primary employer. Sailors Union of the Pacific (Moore Dry Dock Company), 92 N.L.R.B. 547 (1950).

A union cannot violate reserved gates that are properly established and utilized at a common situs because this shows that its dispute is not with the primary employer but rather to embroil neutral or secondary employers in the dispute between the primary employer and the union. A union may picket an employer that has allied itself with a struck employer by performing work that would nor-mally be performed by the striking employees. Teamsters Local 560 (Curtis Matheson Scientific), 248 N.L.R.B. 1212 (1980); NLRB v. Business Machine and Office Appliance Mechanics Confer-ence Board, Local 459, 228 F.2d 553 (2d Cir. 1955).

Jurisdictional disputes need not involve two unions. This applies when the union is seeking to assign work that the employer has assigned to nonunion employees. Teamsters Local 175, 107 N.L.R.B. 223 (1953), enf’d, 506 F.2d 1321 (D.C. Cir. 1974). A union cannot enmesh neutrals in a dispute between the primary employer and the union by way of prohibited conduct. NLRB v. Denver Building and Construction Trades Council, 341 U.S. 675 (1951).

In Carpenters & Joiners of Am. (Eliason & Knuth of Ariz. Inc.), 355 NLRB No. 159 (Aug. 27, 2010), the Board held that a union did not violate the prohibition on secondary boycotts by displaying “shame on” banners attacking neutral employers who were doing business with companies with whom the union had a labor dispute. In finding that the display of stationary banners does not violate the Act, the Board held that the language of the Act and its legislative history “do not suggest that Congress intended Section 8(b)(4)(ii)(B) to prohibit the peaceful stationary display of a banner.” According to the Board, to be illegal under the secondary boycott provision, the activity must “threaten, coerce or restrain.” In this case, the Board found no evidence that the union threatened, coerced or restrained the secondary employers or anyone else. The Board held that U.S. Supreme Court precedence in-terprets the words “coerce” or “restrain” to require “more than mere persuasion” and held that “here, however, there is nothing more.”

In the past, the Board has interpreted this provision to prohibit picketing and disruptive or otherwise coercive nonpicketing conduct by a union directed toward a neutral employer. However, the Board has found that peaceful handbilling does not violate the secondary boycott provision. According to the Board, the display of stationary banners in this case is more like handbilling and is noncoercive conduct falling outside the proscriptions of the secondary boycott provisions. “Nothing in the legisla-tive history suggests that Congress intended to prohibit the peaceful, stationary display of a banner on a public sidewalk.”



The Board found that the banner displays in this case did not constitute such proscribed picketing because they did not create a confrontation. The Board noted that the union representatives did not hold the banners in a way that blocked the entrance to the secondary sites or required those wishing to enter or exit the sites to confront the banner holders. “Banners are not picket signs. Furthermore, the union representatives held the banners stationary, without any form of patrolling.”

The dissent argued that the majority opinion puts neutral employers “right back into the fray” by allowing unions to target secondary employers with large banners and predicted that the decision will foster an increase in secondary boycott activity. See also Carpenters Locals 184 & 1498 (New Star), 356 NLRB No. 88 (Feb. 3, 2011).

Subsequently, in Sheet Metal Workers Int’l Ass’n, 356 NLRB No. 162 (May 26, 2011), the Board re-lied on Eliason & Knuth, supra, in finding that a union’s display of a large inflatable rat at the hospital location of a secondary employer did not violate § 8(b)(4)(ii)(B). The Board noted that, as in Eliason, there was no contention that the display of the inflatable rat or an employee’s leaflet display coerced or restrained the hospital “through violence, blocking ingress or egress or similar direct disruption of the hospital’s business. Nor is there any indication in the legislative history of Section 8(b)(4)(ii)(B) that Congress intended to prohibit these types of displays which, like the banner displays, were stationary and peaceful.” Id. Additionally, the Board held that neither the rat display nor the leaflet display constituted picketing because, like the banner displays in Eliason, entailed no element of confrontation since they were stationary and located a sufficient distance away from the secondary employer’s worksite that visitors were not confronted with a barrier as they were arriving or leaving. Further, there was no evidence that the person with the leaflets or those attending the rat accosted visitors physically or verbally and they were not posted near the secondary employer “in a manner that could have been perceived as threatening” to hospital patrons. See also Microtech Contracting Corp. v. Mason Tenders Dist. Council of Greater New York, 55 F. Supp. 3d 381, 389 (E.D.N.Y. 2014) (denying request for preliminary injunction prohibiting union from posting an inflatable rat at em-ployer’s worksite because, even assuming for the sake of argument that the Norris-LaGuardia Act, 29 USC (NLGA) did not prohibit the court from issuing the injunction, the plaintiff failed to show that it was likely to be successful on the merits, or that there were sufficiently serious questions going to the merits to make them a fair ground for litigation).

E. Excessive Membership Fees (§ 8(b)(5)). Section 8(b)(5) prohibits excessive or discriminatory membership fees when employees are subject to a union security agreement. This section tends to prohibit union’s use of initiation fees as a weapon to limit membership. Even if a membership fee is not excessive it can still be unlawful.

F. Featherbedding (§ 8(b)(6)). Section 8(b)(6) prohibits a union from causing or attempting to cause an employer to pay for services that are not performed (i.e., featherbedding). This section has been emasculated by Board and court decisions, and if any work at all is performed, it is likely no violation will be found. NLRB v. Gamble Enterprises, 345 U.S. 117 (1953); American Newspaper Publishers Association v. NLRB, 345 U.S. 100 (1953).

G. Unlawful Picketing (§ 8(b)(7)). Prohibits a union from picketing or threatening to picket any employer when the object is forcing or requiring an employer to recognize or bargain with a labor organization under the following circumstances:

1. Picketing for recognition is prohibited by § 8(b)(7)(A) when an employer has lawfully recog-nized another labor organization, and, therefore, no question concerning representation can be raised.

2. Picketing for recognition is prohibited by § 8(b)(7)(B) when a valid election has been held within one year among the employees for whom the union is attempting to become the bargain-ing representative.

3. Picketing is unlawful pursuant to § 8(b)(7)(C) when picketing for recognition has been con-ducted, without a petition being filed with the Board, in excess of a reasonable period of time, not to exceed 30 days.



A union can picket with language stating that an employer “does not employ members of” or “have a contract with” a labor organization for more than 30 days unless an effect of such picketing is to induce any individual employed by any other person in the course of his or her employment not to pick up, deliver, or transport any goods or not to perform any services. Local Joint Executive Board of Hotel and Restaurant Employees and Bartenders International Union of Long Beach and Or-ange County, 135 N.L.R.B. 1183 (1962).

If a representation petition is filed within a reasonable time under § 8(b)(7)(C) and a ULP charge has been filed against the picketing union, an expedited election is held without consideration of the union’s showing of interest.

H. Section 8(e). Section 8(e) prohibits a labor organization and any employer from entering into any contract or agreement in which the employer agrees to cease doing business with any other person or refrain from dealing in the products of another employer. Exceptions are created for the apparel and clothing industry. Exceptions are also created for the construction industry involving contracting or subcontracting of work to be done at the site of the construction. The Board will closely scrutinize what constitutes “on site” work. A ULP charge may be filed against both unions and employers under § 8(e).

In Glen Falls Building and Construction Trades Council (Indeck Energy Services, Inc.) 350 N.L.R.B. 417 (2007), the Board held that project labor agreements (PLAs) between a company and a build-ing trades union in which the company agreed that its four new plants would be constructed only with building trades union labor violated § 8(e)’s prohibition on secondary boycotts. The Board also held that the PLAs were not preserved by the construction industry exception. In this case, the company entered into the agreements in response to pressure from various trades unions, such as objections by the unions to the environmental impact statements filed by the company for the plant construction projects and threats by union representatives that the union would “stop every Indeck project in New York unless it went union.” Although the company’s original subcontractor entered into a PLA with the trades unions, it later cancelled this contract and selected a nonunion subcon-tractor for construction of certain plants. The trades unions filed a breach of contract action against Indeck which, in response, filed a charge with the Board, claiming the agreement with the trades unions violated § 8(e) and was unenforceable.

The Board held that Indeck’s promise that its construction contractor would deal only with subcon-tractors who had or would enter into a CBA with the trades unions was an implicit promise not to do business with another in violation of the Act. The Board then held that agreements did not fall within the construction industry exception to § 8(e). However, the Board did not make this determination based upon whether Indeck was in the construction industry, but instead held that the trades unions failed to establish the second and third prongs of their defense, which relate to the “nonstatutory test for proviso coverage” set forth by the U.S. Supreme Court in Connell Construction Co. v. Plumbers Local 100, 421 U.S. 616 (1975) (although Connell was decided under the antitrust laws, an essential element of its decision was the application of § 8(e) to the agreement between the building trades union and a construction contractor that was alleged to be part of the anticompetitive behavior).

The Board held that the construction proviso applies only to: (1) agreements in the context of collective-bargaining relationships; and (2) “possibly to common situs relationships on particular jobsites as well.” The Board determined that the collective bargaining prong of the test was not met because “the sole purpose of these agreements was to bind Indeck to select a contractor who, in turn, would subcontract work only to employers who signed the … PLA.” Indeck and its construction contractor did not sign the PLAs. Additionally, the Board noted that in Connell the U.S. Supreme Court suggested that “secondary union-signatory clauses might be protected by the proviso even without a collective-bargaining relationship if they were directed toward the reduction of friction that may be caused when union and nonunion employees of different employers are required to work together at the same jobsite.” However, the Board did not determine whether this language actually created an alternative basis for proviso coverage because the trades unions failed to prove that the agreements with Indeck and its construction contractor were executed to avoid such disputes. “On



the contrary, the record shows that Indeck’s purpose was to remove the threat of union opposition to Indeck’s efforts to secure regulatory approval of its cogen construction plans, and secondarily, to provide a steady labor source for jobsite subcontractors. The Respondents, for their part, wanted a labor monopoly at a major construction site to provide employment for their out-of-work members.” Id. at 5, 21.

IX. ULP PROCEDURES AND PENALTIESA. ULP Procedure. Sections 10 and 11 of the NLRA establish the powers of the Board and the Regional offices with respect to hearings and investigations. An employer or a labor organization or the agents of either file a charge with the NLRB alleging a violation of the Act. The section has a six-month statute of limitations. (In a discharge case, the six-month period begins to run on the date employee was notified, rather than the date the discharge took effect. U.S. Postal Service Ma-rina Mail Processing Center, 271 N.L.R.B. 397 (1984)). The case is assigned to a Regional field examiner or field attorney to investigate. After the Board agent completes the investigation, she or he reports findings to his or her superiors, and the Regional Director decides whether to prosecute.

If the Region decides that no violation of the Act exists, it will seek a withdrawal of the charge and, absent withdrawal of the charge, will dismiss it. If the charge is dismissed, an appeal may be filed with General Counsel Division of Appeals in Washington, D.C. No appeal may be filed if the charge is withdrawn. Section 3(d) places in the General Counsel “final authority,” on behalf of the Board, with respect to the investigation of charges and issuance of complaints.

If the Region believes the charge has merit, it will issue a complaint absent settlement. The Region will seek posting of the Board notice and affirmative action such as reinstatement, back pay, and good faith bargaining, where appropriate. The respondent may be able to enter into non-Board settlement outside of the Board processes without posting a notice and without reinstatement of the individual alleging discrimination. In a non-Board settlement, the charging party withdraws the charge with the Board’s approval.

If no settlement is reached, the complaint generally issues, and the case is litigated before a NLRB administrative law judge. The complaint cannot be broader than the underlying charges. Drug Plas-tics & Glass Co., Inc. v. NLRB, 44 F.3d 1017 (D.C. Cir. 1995).

Cases are usually set for trial about three to six months after the complaint issues. After the trial, both sides usually write briefs to the judge. In the usual case, an ALJ issues a decision approxi-mately three to 10 months after case is tried. The decision of the ALJ may be appealed by the losing party or parties to the Board. The Board has initiated “bench decisions” in certain cases. In a “bench decision” the ALJ rules at the close of the hearing, usually without giving the parties the opportunity to file briefs.

If the respondent loses before the Board, it can refuse to comply with the Board order and can litigate the case before a federal appeals court. Section 10(f) of the Act provides that any person aggrieved by a final order of the Board granting or denying, in whole or in part, the relief sought may obtain a review of such order in any appropriate court of appeals. Litigation to decision before a court of appeals takes approximately six months to two years or more.

B. Change in Procedure for Pre-Arbitral Deferral of Certain § 8(a)(1) and 8(a)(3) Charges. On January 20, 2012, the NLRB’s Office of the General Counsel released GC Memorandum 12-01, stating that it will be seeking to have the Board change existing policy and no longer routinely defer § 8(a)(1) and 8(a)(3) cases where arbitration will not be completed within one year. For more infor-mation regarding the impact of this Memorandum and the Board’s deferral procedure in general, please see the Coping with Unions Chapter of the SourceBook.

C. Remedies. If the respondent ultimately loses, and the case involves back pay, the charged party owes the discriminatee back pay plus interest less interim earnings. In Jackson Hosp. Corp., d/b/a/



Kentucky River Medical Center, 356 NLRB No. 8 (2010), enforcement denied, set aside in part, Jackson Hosp. Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011), the Board held that interest on back pay remedies will be compounded on a daily basis.

The Board’s Acting General Counsel Lafe Solomon has issued a memorandum (GC 13-02, Janu-ary 9, 2013), that modifies existing policy to permit Board settlements to include front pay instead of requiring such agreements to be set forth in non-Board “side letters,” which was the prior practice.

The Memorandum emphasizes that Board policy prefers reinstatement over front pay and notes that under current law the Board does not include front pay as a remedy in remedial orders. Neverthe-less, the Memorandum also acknowledges that payment of compensation in lieu of reinstatement – that is, front pay – is commonly included as part of voluntary settlement agreements. Because of the Board’s practice of requiring that settlement terms for the provision of front pay be included in a side letter separate from documentation of a Board settlement, most settlement agreements includ-ing front pay are entirely non-Board. The Memorandum notes that Board policy should favor Board settlements, not discourage them. Accordingly, the Board’s Case Handling Manual (CHM) will be revised to permit front pay to be included in the terms of Board settlement agreements.

Additionally, the Board has held that respondents who have been found to have committed ULPs must post remedial notices electronically if they regularly communicate with their employees and members electronically, in addition to physically posting the notice. See J Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), enf’d, 656 F.3d 860 (9th Cir. 2011). The Board also held that “a policy concern-ing communication of remedial notices should apply equally to union and employer respondents. The policy we announce today, by its terms, applies to all respondents, employer and union, without differentiation.” Id. at fn. 11.

Accordingly, the Board revised its current notice-posting language, which requires posting in all places where notices to employees or members are customarily posted, to expressly encompass electronic communication formats. The determination of whether electronic posting will be required in a particular case will be made in compliance proceedings. The new rule will apply to all currently pending cases as well as future cases.

Bargaining Orders. The Board can require an employer to collectively bargain with a labor organi-zation even though no election has been held or in spite of the fact that a union lost an election. A bargaining order may be warranted when the ULPs have a tendency to undermine majority strength and impede the election processes. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). There is a “running feud” between the appeals courts and the NLRB over changes in the employee comple-ment, such as employee turnover or the passage of time, and how that affects the decision to order bargaining. The Board has consistently deemed such changes irrelevant but, as the Eighth Circuit noted, almost all of the appeals courts have disagreed. NLRB v. Cell Agricultural Manufacturing Co., 41 F.3d 389 (8th Cir. 1994); J.L.M., Inc. v. NLRB, 31 F.3d 79 (2d Cir. 1994). See also NLRB v. U.S.A. Polymer Corp., 272 F.3d 289, 293 (5th Cir. 2001) (“The Federal Circuit Courts are almost unanimous in holding that the NLRB must take current conditions into account when it determines whether to issue a bargaining order” under Gissel); NLRB v. Goya Foods, 525 F.3d 1117 (11th Cir. 2008) (assuming, but not deciding, that the passage of time and changed circumstances are rel-evant when evaluating the justifications for imposing an affirmative bargaining order; the employer’s failure to inform the NLRB of changes occurring during the years between an ALJ’s finding of a widespread and unrelenting pattern of unlawful conduct culminating in an unlawful withdrawal of recognition and the NLRB’s entry of an affirmative bargaining order was fatal to the employer’s ar-gument that the bargaining order should be denied or at least re-evaluated in light of employee turn-over, technological and management changes, and private settlements with affected employees).

Section 10(j) Injunctions. Section 10(j) of the Act empowers the Board to seek injunctive relief in the federal district courts. The Board has recently announced it will more aggressively seek such relief in “nip in the bud” cases, where the employer is accused of discharging one or more employ-ees allegedly to halt an organizing campaign before it can gain momentum. See NLRB GC Memo-



randum 10-07 “Effective Section 10(j) Remedies for Unlawful Discharges in Organizing Campaigns” (Sept. 30, 2010).

Restoration of the Status Quo. Where an employer closes a facility or subcontracts work with a purely anti-union motive, the Board has the authority to order restoration of operations, except where it would be too financially burdensome on the employer to do so. Coronet Foods, Inc., 305 N.L.R.B. 79 (1991), enf’d, 981 F.2d 1284 (D.C. Cir. 1993); Lear Siegler, Inc., 295 N.L.R.B. 857 (1989). Restoration is generally considered an extraordinary remedy.

Imposition of Litigation Expenses. In Camelot Terrace, 357 NLRB No. 161 (Dec. 30, 2011), the Board adopted an ALJ’s recommendation that the employer reimburse both the General Counsel and the Service Employees International Union (SEIU) for litigation costs and expenses associated with bringing two consolidated cases before the judge.3 Due to the “many egregious unfair labor practices found by the judge and not contested by the [employer],” coupled with the Board’s claim that it had “inherent authority to control its own proceedings,” the majority held that the Board could award litigation expenses under the “bad faith” exception to the American Rule.4

Citing to past NLRB decisions, the Board analogized this “inherent authority” to a federal court’s “inherent authority to preserve the integrity of the proceedings and manage [its] own affairs.” The Board reasoned that since a federal court could award attorneys’ fees against a party for bad faith conduct, an administrative agency such as the Board could similarly award litigation expenses to both the charging party (i.e., union) and the General Counsel. Accordingly, because it was undis-puted that the employer exhibited a pattern of bad faith conduct, it had to reimburse the General Counsel and the SEIU for litigation costs and expenses.

Member Hayes dissented, stating that “an agency must establish ‘clear statutory authority’ for its claim of congressional authorization to impose fee awards.” In support of his dissent, he noted that both the D.C. Circuit and the U.S. Supreme Court have held that no such support for imposition of litigation costs exists in either the text of the NLRA or its legislative history. Therefore, according to Member Hayes, the Board lacked authority under § 10(c) of the Act to fashion such a fee-shifting order.5

D. ULP Charges Barred by Releases Contained in Termination Agreement. The Board has held that waivers signed by a group of terminated employees in exchange for enhanced severance benefits barred ULP charges filed by a union on behalf of the employees. See BP Amoco Chemical-Chocolate Bayou, 351 N.L.R.B. 614 (2007). In its 2-1 decision, the Board majority applied the fac-tors it considers in determining whether a private settlement of a ULP is valid. The Board majority rejected the dissenting member’s opinion that these factors should not apply where no ULP charge has been filed at the time the release is executed, noting that whether charges have been filed may be relevant to the analysis but is not dispositive.

In finding that the employees validly waived their right to file ULP charges arising from their termina-tions, the Board noted that the employees were all advised that they should consult legal counsel before signing the releases, and many did so. The Board held that the employees were aware of the content of the agreements, advised as to the meaning, and knew that they were releasing claims against the employer. Thus, the Board found that the employees intended to be bound by the agree-ment.

The Board also found that the agreements were reasonable in light of the violations alleged and the litigation risks presented. When the agreements were signed, no ULP charges had been filed and the prospect of litigation was not obvious. Additionally, the Board found that there was a sig-

3 The employer did not challenge the judge’s ruling that it committed numerous § 8(a)(1) and 8(a)(5) violations by engaging in bad faith bargaining. 4 Under the American Rule, parties are generally responsible for their own litigation expenses.5 Section 10(c) empowers the Board to order a party guilty of a ULP “to take such affirmative action … as will effectuate the policies of this Act.”



nificant risk that a charge alleging discriminatory selection would not be meritorious because little or no union activity was occurring at the time of the downsizing; the record did not show that all of the employees selected for termination had engaged in protected activity or that the employer was aware of this; the selection process was a careful and lengthy one supported by business justifica-tions; many of the employees presented by the General Counsel as witnesses at the hearing were not supportive of the position of the General Counsel or the union; and many of the terminated employees had work histories that were “less than pristine.”

The Board majority distinguished this situation from prior cases in which the Board has refused to give effect to private settlement agreements. In one case, the employer’s history of serious viola-tions of the Act, as well as the opposition of the charging party and General Counsel to the waiver, weighed against enforcing the waiver provisions. The Board found that such concerns were not present in this case. Additionally, the Board has refused to enforce waivers that include provisions prohibiting employees from providing evidence to the Board in cases involving other employees. However, the agreements in this case did not contain such provisions – they only precluded the claims of the employees who entered into the agreements.

X. APPENDIXTypical Questions Asked By Employees, see www.fordharrison.com/sourcebooks.aspx.

chapter twenty-three nlra’s impact on the workplace 23 - nlra's impact on the... · ix. ulp...

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