Key 2020-21 NLRB Rulings and Reversals Impacting Non-Union

Key 2020-21 NLRB Rulings and Reversals

Impacting Non-Union and Union EmployersReinstated Handbook Rules Under Boeing, Whistleblower Protections, Union Protections

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WEDNESDAY, NOVEMBER 17, 2021

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John S. Bolesta, Special Counsel, Sheppard Mullin Richter & Hampton LLP, Washington, D.C.

Allison Anderson, Attorney, Foley Hoag LLP, Boston

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KEY 2020-21 NLRB RULINGS AND REVERSALS

IMPACTING NON-UNION AND UNION EMPLOYERS

John S. Bolesta,

Sheppard Mullin Richter & Hampton LLP

2099 Pennsylvania Ave. NW, Suite 100

Washington, DC 20006

[email protected]

Allison L. Anderson

Foley Hoag LLP

155 Seaport Blvd.

Boston, MA 02210

[email protected]

RESCISSION OF TRUMP-ERA GENERAL COUNSEL MEMOS, GC 21-01

Memo published February 1, 2021 by Acting GC Peter Sung Ohr

10 Memoranda issued by then-GC Peter Robb rescinded:

Most of the rescinded memoranda expanded union exposure to unfair labor practice

charges

GC 18-04 –provided guidance on employee handbook rules and policies – “no longer

necessary” given Board decisions interpreting the Boeing case

MANDATORY SUBMISSIONS TO ADVICE, GC 21-04

Memo published August 2021

Three stated objectives:

(1) cases and subject matter areas where, in the last several years, the Board overruled legal precedent;

(2) initiatives and areas that, while not necessarily the subject of a more recent Board decision, are nevertheless ones she

would like to examine carefully; and

(3) other case-handling matters traditionally submitted to the GC’s office for advice.

Memo also makes clear the list is non-exhaustive and we can expect to see supplementation later

MANDATORY SUBMISSIONS TO ADVICE, GC 21-04, CON’T

CASES INVOLVING BOARD DOCTRINAL SHIFTS

1. Employer Handbook Rules

The Boeing Co., 365 NLRB No. 154 (2017): if a facially neutral rule could potentially interfere with rights under the Act, the

Board will evaluate: (i) the nature and extent of the potential impact on employee rights; and (ii) legitimate justifications

associated with the rule. If the justifications outweigh the potential impact, then the rule would be deemed lawful.

Led to Trump-era GC Guidance detailing categories of rules that were presumptively lawful, presumptively unlawful and in between

Current GC wants to revisit:

Analysis of facially neutral rules related to: confidentiality rules, non-disparagement rules, social media rules, media communication rules,

civility rules, respectful and professional manner rules, offensive language rules and no camera rules.

AT&T Mobility, 370 NLRB No. 121 (May 2021), overruling prong 3 of Lutheran Heritage, invalidating a lawful rule used to interfere with an

employee’s Section 7 rights

Board Member McFerran’s dissent in this case likely a good preview of future changes to Boeing



II. Confidentiality Provisions in Separation Agreements

GC wants to revisit:

Baylor University Medical Center, 369 NLRB No. 43 (2020), Board permitted severance agreements requiring terminated employees to

refrain from disparaging or suing the employer, or assisting 3rd parties in prosecuting claims.

Apogee Retail LLC, d/b/a Unique Thrift Store, 368 NLRB No. 144 (2019), Board held that employers may require confidentiality during the

duration of a workplace investigation.

Likely to return to era where such provisions are limited or presumptively unlawful

Broad application, beyond unionized workplaces



III. What constitutes concerted protected activity?

Digital communications:

Rio All-Suites Hotel and Casino, 368 NLRB No. 143 (2019), Board held that employers can lawfully limit employee’s personal use of company

email, including for union purposes. GC asking to see cases about other digital media too.

Individual griping vs group-focused complaints

Alstate Maintenance, LLC, 367 NLRB No. 68 (2019), Board set out 5 factor to test to determine if individual comments rise to level of CPA,

returning to more fact-specific inquiry, rather than per se CPA standard.

Solicitation

Wynn Las Vegas, LLC, 369 NLRB No. 91 (2020), expanding definition of solicitation, and finding lawful rule prohibiting such conduct during

working time/ in working areas.



IV. Union Access

Contractor Employees

Tobin Center for the Performing Arts, 368 NLRB No. 46 (2019), property owner lawfully may prohibit the off-duty employees of its on-site

contractors (or licensees) from accessing its private property to engage in Section 7 activity under the Act unless (1) the off-duty

employees regularly and exclusively work on the property, and (2) the owner of the property cannot show the off-duty employees do not

have one or more reasonable non-trespassory alternative means to communicate their message. Even one non-trespassory option will

defeat a claim for access.

Union Rep Access

Kroger Ltd Partnership, 368 NLRB No. 64 (2019), Board finding that union agent access to private property distinct from permitting access

to charitable organizations, and rule prohibiting such is lawful

V. Union Dues

Revisiting case law allowing unilaterally ceasing dues deduction at contract expiration.



VI. Employee Status

Independent Contractor Status

SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), Returning to common-law agency test, and reviving import of “entrepreneurial opportunity” factor, and shifting away from focus on the “right to control” factors.

VII. Employer duty to recognize and/or bargain upon contract expiration

Clear and Unmistakable Waiver standard likely on its way back

MV Transportation, 368 NLRB No. 66 (2019)(adopting a “contract coverage” standard, under which unilateral action is permitted if it falls within the compass or scope of certain contractual language in the CBA).

Bath Iron Works Corp., 345 NLRB 499 (2005) (providing, in the contract modification context, that employer’s interpretation of contract need only have a sound arguable basis to avoid finding a violation)

Anticipatory Withdrawal standard likely reverting to pre-Johnson Controls test

Johnson Controls, Inc., 368 NLRB No. 20 (2019) (overruling the “last in time” rule of Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001) and requiring that a union faced with an anticipatory withdrawal of recognition may only reacquire majority status through filing a petition for a Board election within 45 days from the date the employer gives notice of the anticipatory withdrawal)



Successor employer obligation to bargain over initial terms likely under any circumstance

Ridgewood Health Care Center, Inc., 367 NLRB No. 110 (2019) – successor employer that discriminates in refusing to hire a certain number of the predecessor’s workforce to avoid a Burns successorship bargaining obligation does not necessarily forfeit the right to set employees’ initial terms

Unilateral modification of contract upon expiration of CBA based on past practice likely on the chopping block

Raytheon Network Centric Systems, 365 NLRB No. 161 (2017) (overruling E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), where the Board held that actions consistent with a past practice created under a management rights clause in an expired contract or involving employer discretion constituted a change triggering a notice/bargaining obligation).

“Competitive disadvantage” likely no longer a defense to refusal to furnish information

Arlington Metals Corp, 368 NLRB No. 74 (2019) (distinguishing the Supreme Court decision in NLRB v Truitt Mfg., 351 U.S. 149 (1956) and Board decision in Nielsen Lithographing Co., 305 NLRB 697 (1992) in finding no claimed inability to pay triggering an obligation to furnish requested employer financial records and instead finding employer to be asserting “competitive disadvantage”).

Enhanced bargaining orders, discipline of employees not yet covered by CBA, and more

American Security Programs, Inc., 368 NLRB No. 151 (2019); Care One at New Milford, 369 NLRB No. 109 (2020); Sysco Grand Rapids, LLC, 367 NLRB No. 111 (2019); Pittsburgh Post-Gazette, 368 NLRB No. 41, slip op. at 3, n.5 (2019); Palace Station Hotel & Casino, 368 NLRB No. 148 (2019)



Right to an election possibly on chopping block- mandatory bargaining upon showing of card majority

Joy Silk Mills, Inc., 85 NLRB 1263 (1949) could be the new standard again

VIII. Deferral of ULP’s and likely return to Babcock and Wilcox

United Parcel Service, 369 NLRB No. 1 (2019) (overruling Babcock & Wilcox Construction Co., 361 NLRB 1127 (2014), which required the

party urging deferral to demonstrate that (1) the arbitrator was explicitly authorized to decide the ULP issue, (2) the arbitrator was

presented with and considered the statutory issue or was prevented from doing so by the party opposing deferral, and (3) Board law

reasonably permits the arbitral award).

IX. Employees’ Section 7 right to strike and/or picket likely to be greatly expanded

Hot Shoppes, 146 NLRB 802 (1964); Wal-Mart Stores, 368 NLRB No. 24 (2019); Preferred Building Services, Inc., 366 NLRB No. 159 (2018);

Service Electric Co., 281 NLRB 633 (1986)

EXPANDING REMEDIES, GC MEMOS 21-06 & 21-07

Seeking Full Remedies, GC Memo 21-06

‘Make-Whole’ Relief: Historically monetary relief limited to back pay lost as a result of ULP. Directs seeking broad financial penalties including:

Terminations: Directed to seek consequential damages, front pay, liquidated back pay, and expanded remedial measures in cases involving firings of undocumented workers.

Organizing cases: Union organizing costs

Failure to bargain cases: Negotiation expenses

Revisit Ex-Cell-O Corp., 185 NLRB 107 (1970) – Opening door to awards for back pay in failure to bargain cases, based on what employer would have paid if it had negotiated.

Non-monetary relief expanded too:

Bargaining orders

Extending 12-month certification bar

Union access

Broader, more widely distributed notice postings

Training

Broad cease-desist orders

EXPANDING REMEDIES, GC MEMOS 21-06 & 21-07, CON’T

Full Remedies in Settlements, GC Memo 21-07

What is already recognized as valid Consequential Damages?

Legal fees

Health insurance premiums

Moving expenses

What could be included in Consequential Damages?

Interest on credit card bills

Penalties paid to prematurely withdraw retirement funds

Costs for liquidating a savings accounts

Loss of home or car, due to inability to pay mortgage/lease

Impact on credit rating

Reimbursement for training/coursework to become re-employed

EXPANDING REMEDIES, GC MEMOS 21-06 & 21-07, CON’T

Full Remedies in Settlements, GC Memo 21-07

Front Pay

In unlawful termination cases, encouraged to seek 100% back pay and consequential damages, and where reinstatement will not be

attained, also include front pay, neutral references, outplacement services

Apology letter – written by employer to employee

Default Language

All settlement agreements to include defined Default Language (text included in GC Memo)

Stopping use of non-admissions clauses

Expanding methods of dissemination of notice postings and length of posting to 60 days or more

BARGAINING OBLIGATIONS UNDER THE DEPARTMENT OF LABOR’S

EMERGENCY TEMPORARY STANDARD TO PROTECT WORKERS FROM

CORONAVIRUS, OM MEMO 22-03

DOL Emergency Temporary Standard to Protect Workers from Coronavirus issued November 5, 2021

Enforcement stayed on November 6, 2021 in B.S.T. Holdings, L.L.C. et al. v. Occupational Health and Safety

Administration et al., No. 21-60845 (5th Cir.)

NLRB Operations Management Memorandum OM 22-03 issued November 10, 2021

Not new law- but helpful reminder of effects bargaining obligations and, possibly, decisional bargaining obligations

in cases where ETS (if ultimately found lawful) provides discretion to covered employers in implementing certain

of its requirements

Documents

Key 2020-21 NLRB Rulings and Reversals Impacting Non-Union