NLRB Affirms New Standard on Employee Email Use.
Manatt Phelps & Phillips LLP USA April 27 2017
Why it matters
A divided National Labor Relations Board (NLRB) affirmed that if an employer provides employees with access to the email system, then employee use of email for statutorily protected communications on nonworking time is presumptively permitted. This standard, set forth by the Board the first time it considered Purple Communications, Inc., was applied on remand to the employer’s communications policy that prohibited workers from engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company, or sending uninvited email of a personal nature. A union seeking to organize the company’s workers objected to the policy, arguing that it interfered with their freedom of choice in the union election. An administrative law judge (ALJ) initially found the policy lawful but the NLRB reversed in Purple Communications I. The Board established a new standard 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.” On remand, an ALJ applied the new standard and found the employer’s policy unlawful. The Board affirmed in a 2-to-1 vote. Although a dissent filed by the Acting Chair characterized the new standard as “incorrect” and “unworkable,” employers are stuck with it for the time being.
Detailed discussion
Purple Communications provides real-time sign language interpretation during video calls at 16 call centers across the United States. Each interpreter is assigned to an individual email account, which can be accessed both at a workstation and from home computers and personal smartphones. Since 2012, the employer has maintained a handbook policy that prohibits employees from using the company email system for nonbusiness purposes.
Specifically, the policy banned use of “the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities: … Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. … Sending uninvited email of a personal nature.”
When workers at some of the call centers attempted to organize a union, they filed a charge with the National Labor Relations Board (NLRB) that the policy interfered with employees’ National Labor Relations Act (NLRA) Section 7 rights in violation of Section 8(a)(1). An administrative law judge (ALJ) initially upheld the policy, finding that employees’ rights were not violated.
But upon review, the NLRB established a new standard with regard to employee use of an employer’s email system, ruling 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 noted that an “employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights,” and remanded the case for the ALJ to consider the lawfulness of Purple Communication’s electronic communication policy under the new standard.
On remand, the employer notified the judge it would not contend that special circumstances existed justifying the policy; instead, Purple Communications argued that Purple I was wrongly decided and should be reconsidered. Having been tasked with a mandate from the Board, the ALJ applied the new standard and found that the employer’s policy violated Section 8(a)(1) “by maintaining an overly broad electronic communications policy that unlawfully restricts employees’ use of the … email system for Section 7 purposes.”
Purple Communications appealed to the NLRB. A majority of the Board affirmed the ALJ’s decision and the use of the new standard, adopting an order to have the employer rescind the policy.
Acting Chair Philip Miscimarra dissented, writing that the new standard is “incorrect and unworkable.” He raised several objections, including that the new standard fails to properly balance the right of employees to self-organize with the right of employers to maintain discipline in their establishments.
Restricting use of an employer’s email system to business-related purposes does not create an unreasonable impediment to self-organization, he said, “notwithstanding the widespread availability of multiple digital platforms (e.g., social media, text messaging, and personal email accounts)—not to mention old-fashioned face-to-face conversation—through which employees may engage in NLRA-protected communications separately and apart from their employer’s email system.”
In addition, the Purple Communications standard fails to accommodate employers’ property rights in their information technology resources and makes it “enormously” difficult for employers to enforce a valid rule prohibiting solicitation during working time, Miscimarra wrote, not to mention the creation of an exception that will create uncertainty for employers. “[W]hat qualifies as a ‘special circumstance will only be determined after the fact and case by case, following potentially years of Board and court litigation,” he said.
To read the decision and order in Purple Communications, Inc., click here.
Unions in France Split Over Whether to Back Emmanuel Macron
By AURELIEN BREEDEN MAY 1, 2017
PARIS — France’s presidential campaign entered its last week on Monday, coinciding with May Day labor demonstrations around the country that reflected a split among unions over whether to endorse Emmanuel Macron, the centrist candidate, against Marine Le Pen, his far-right opponent.
More than 140,000 people participated in rallies in Paris, Lille, Marseille and other cities — events organized by French labor unions, some of which have found themselves in a bind ahead of the vote in the second and final round of the presidential election on Sunday.
To continue reading this story – https://nyti.ms/2po4e8p
Italian Labor Unions Demand End to Country’s Soaring Unemployment on May Day
16:46 01.05.2017(updated 17:13 01.05.2017)
© Sputnik/ Maksim Blinov
ROME (Sputnik) — Italian trade union confederations chose the Sicilian town of Portella della Ginestra for holding the national Labor Day event. The town was chosen to commemorate the May 1, 1947 massacre of almost a dozen May Day celebration revelers at the hands of Sicilian separatist leader Salvatore Giuliano’s men.
“Unless government investments resume, any talk about youth having job opportunities would be a lie,” Italian General Confederation of Labor (CGIL) General Secretary Susanna Camusso said at the event.
Italy’s jobless rate peaked at around 13 percent in 2015 before declining to around 11.5 percent this year but stayed among Europe’s highest. Youth unemployment dropped from nearly 45 percent to under 40 percent in the same period, placing it fourth in the world after South Africa, Greece and Spain, according to Organisation for Economic Co-operation and Development (OECD) data.
Italian President Sergio Mattarella gave a speech at the Quirinal Palace, recalling the deadly events that took place 70 years ago in Portella della Ginestra.
“Labor Day, which was stained with blood in Portella della Ginestra 70 years ago, is a celebration of the Republic,” he said.
The president also addressed Italy’s unemployment situation, stating that it remains a chief concern but that the economy had finally started emerging from recession with the number of those in employment on the rise.
“Our society cannot live with the fact that youth unemployment remains at such a high level. We all should feel the need to do more,” Mattarella said.
The populist opposition Five Star Movement used the occasion to attack both the ruling parties and the trade unions over their role in upholding the current unjust economic system.
“Every year we mark the celebration with a sense of bitterness. As the world sinks into a huge systemic crisis, which is impacting the global mode of production, in Italy only the ruling Democratic Party, the banks and the main trade unions, which are unable to see the coming end of the this economic model and the impending social upheavals, are celebrating,” the party said in its Labor Day statement.
Labor Day is a national holiday in Italy. In Rome, a huge concert is scheduled in the center of the city. Top Italian stars will perform for an audience of some one million revelers, according to the organizers. Monday’s public events are taking place amid stepped up security measures in the wake of numerous terror attacks that shook Europe over the past year.
NLRB Appointments in the Works?
Article By:
Gerald F. Lutkus
Published reports indicate that two appointments are in the works for the NLRB that will bring the Board up to its full complement and finally swing the Board’s majority back to the Republicans.
Bloomberg BNA is reporting that the Trump Administration has narrowed the field down to Marvin Kaplan and William Emanuel to fill the two openings on the Board. Kaplan is an attorney for the Occupational Safety and Health Review Commission, an independent federal agency. Emanuel is a management-side lawyer in private practice in Los Angeles.
The Trump Administration has already named existing Board member Philip A. Miscimarra (R) as Chairman of the Board, but that appointment carries little sway as of today because the two remaining Board members, Mark Gaston Pearce (D) and Lauren McFerran (D), are Democratic appointees and solid pro-union votes.
Miscimarra’s current term ends December 16, 2017; Pearce’s term runs through August 27, 2018; and McFerran’s terms ends December 16, 2019. Critically, however, current Board General Counsel, Richard Griffin will likely remain in place through the end of his term on November 4, 2017. Griffin is the former general counsel of the International Union of Operating Engineers and he has pushed a staunchly pro-union agenda during his terms as general counsel. The Board’s general counsel has a unique role among the federal agencies as he serves as both a legal advisor to the Board as well as the investigator and prosecutor on alleged violations of the National Labor Relations Act. As such, he has the ability to shape Board policy as well as its active litigation agenda.
Once nominated, the two new appointees will have to be confirmed by the Senate, so, for now, the Board, with its 2-1 Democratic majority, will continue pushing the pro-union agenda established during the Obama Administration.
Senate Confirms Alex Acosta for Secretary of Labor
Acosta Approved by Senate
Ogletree Deakins – Harold P. Coxson
USA April 27 2017
On April 27, 2017, the United States Senate confirmed the nomination of Rene Alexander “Alex” Acosta as the nation’s 27th U.S. Secretary of Labor by a bipartisan final vote of 60-38. Eight Democrats and one independent joined the Republicans voting in favor of Secretary Acosta. Earlier, the Senate voted 61-39 to advance his nomination to the floor, followed by up to 30 hours of debate.
Secretary Acosta’s nomination and Senate confirmation followed the forced withdrawal of President Trump’s initial nominee for labor secretary, franchise restaurant CEO Andrew Puzder, who was the object of blistering union and media attacks.
President Trump nominated Acosta immediately following Puzder’s withdrawal, and his nomination was narrowly voted out of the Senate Committee on Health, Education, Labor and Pensions on a straight party-line vote of 12–11.
Previous Senate Confirmations
This is not the first time Acosta has been confirmed by the Senate. During the administration of former president George W. Bush, he was confirmed from 2002–2009 to three presidentially-appointed, Senate-confirmed positions: first as a Member of the National Labor Relations Board, then as Assistant Attorney General for Civil Rights at the U.S. Department of Justice, and finally as United States Attorney for the Southern District of Florida. As U.S. Attorney, Acosta successfully prosecuted several high-profile cases, including the conviction of Republican lobbyist Jack Abramoff as well as the conviction of several leaders of the Columbian drug cartel.
While at the NLRB, Acosta participated in more than 125 decisions. He advocated the increased use of rulemaking—rather than administrative decision-making involving individual cases—in order to promote predictability, efficiency, and stability.
Other Experience
Since 2009, Acosta has been the Dean of Florida International University’s College of Law and has served as Chairman of the Board of U.S. Century Bank, where he turned around the struggling bank by securing capitalization that allowed the community service bank in South Florida to remain in business and independent.
Acosta received his undergraduate and law degrees from Harvard University and served as a law clerk for U.S. Supreme Court Justice Samuel Alito when Justice Alito was on the U.S. Court of Appeals for the Third Circuit.
Challenges Awaiting Acosta at the DOL
Secretary Acosta will face an entrenched bureaucracy at the labor department that may resist his efforts to undo many of the regulations they helped draft over the past eight years, including ordering the withdrawal of pending court appeals seeking to preserve regulations such as the persuader rule and the overtime exemption “salary level” test for white collar employees. Among the sub-regulatory challenges will likely be restoring agency-binding, case-by-case “opinion letters” in place of administrative interpretations, which replaced opinion letters in the previous administration, and reversing the controversial administrative interpretation requiring nonunion employers to allow union agents to accompany Occupational Safety and Health Administration inspectors on walk-around inspections. First and foremost, Secretary Acosta must fill key staff positions that require Senate confirmation and deal with agency budget and staffing cuts.
Secretary Acosta takes over at the Department of Labor at a challenging time with shifts in the economy and the world of work. Based on his experience and track record, where he has encountered similar challenges, as well as his intelligence, Secretary Acosta will be up to the task.
Summary of NLRB Decisions for Week of April 17 – 21, 2017
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB. Inquiries should be directed to the Office of the Executive Secretary at 202‑273‑1940.
Summarized Board Decisions
W.B. Mason Co., Inc. (01-CA-180518; 365 NLRB No. 62) South Boston, MA, April 20, 2017.
The Board granted the General Counsel’s motion for default judgment based on the Respondent’s failure to file an answer to the complaint. The Board found that the Respondent violated: (1) Section 8(a)(3) and (1) by failing to implement a promised wage increase to its employee because he and other employees formed, joined, and assisted the Union and engaged in concerted activities, and to discourage employees from engaging in these activities; and (2) Section 8(a)(4) and (1) by engaging in that same conduct because the employee cooperated in a Board investigation and testified at a Board hearing.
Charge filed by International Brotherhood of Teamsters, Local 25. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Anderson Excavating Company (14-CA-156092; 356 NLRB No. 63) Omaha, NE, April 20, 2017.
The Board adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union and repudiating the terms and conditions of its collective-bargaining agreement with the Union. The Board majority (Members Pearce and McFerran) rejected the Respondent’s argument that the judge erred by relying on deposition testimony because such reliance violates the “litigation privilege,” and, in the alternative, found that, even without relying on the depositions, the record established the violations. Acting Chairman Miscimarra did not pass on the applicability of the “litigation privilege,” but simply found that, even without relying on the depositions, the record established the violations.
Charge filed by International Union of Operating Engineers Local 571. Administrative Law Judge Arthur J. Amchan issued his decision on August 19, 2016. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
CPM Development Corp. d/b/a Central Pre-Mix Concrete Co. (19-RC-178412) Yakima, WA, April 17, 2017. The Board denied the Intervenor’s Request for Review of the Regional Director’s Supplemental Decision and Direction of Election as it raised no substantial issues warranting review. Petitioner – International Union of Operating Engineers, Local 302. Intervenor – International Brotherhood of Teamsters, Local No. 760. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Supreme Airport Shuttle, LLC (05-RC-187864) Baltimore, MD, April 17, 2017. The Board denied the Employer’s Request for Review of the Regional Director’s Order Denying Employer’s Motion to Require Petitioner’s Counsel to Withdraw as it raised no substantial issues warranting review. The Board also denied as moot the Employer’s request to stay the representation proceedings pending a determination by the Board on the Employer’s Request for Review. Petitioner – Shuttle Drivers’ Association of BWI. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
The Permanente Medical Group, Inc. (32-RC-158884) Oakland, CA, April 18, 2017. The Board denied the Petitioner’s Request for Review of the Acting Regional Director’s administrative dismissal of the representation petition, as it raised no substantial issues warranting review. Petitioner – Service Employees International Union – United Healthcare Workers-West. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Comcast of Florida/Georgia/Illinois/Michigan, LLC (13-RD-128244) Chicago, IL, April 19, 2017. No exceptions having been filed to the Acting Regional Director’s report regarding the objections to the election held September 17, 2015, the Board adopted the Acting Regional Director’s findings and recommendations and issued a Certification of Representative. Petitioner – an individual. Union – International Brotherhood of Electrical Workers, Local Union 21, AFL-CIO.
Manhattan College (02-RC-023543) New York, NY, April 20, 2017. The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting) granted the Employer’s Request for Review of the Regional Director’s Supplemental Decision and Order solely with regard to the Regional Director’s inclusion of the Department of Religious Studies faculty in a unit of adjunct faculty. Applying Seattle University, 364 NLRB No. 84 (2016) and Saint Xavier University, 364 NLRB No. 85 (2016), the majority found that the University holds out the faculty in the Department of Religious Studies as performing a specific role in maintaining the University’s religious educational environment. The majority therefore excluded the Department of Religious Studies adjunct faculty from the unit and denied the Employer’s request for review in all other respects. Acting Chairman Miscimarra, relying on his dissents in Seattle University, Saint Xavier University, and Pacific Lutheran University, 361 NLRB No. 157 (2014), would have granted the Employer’s Request for Review in its entirety because he believes there is a substantial issue regarding whether the Board lacks jurisdiction over the entire petitioned-for unit. Even applying Pacific Lutheran, Acting Chairman Miscimarra would grant review because he believes there is a substantial issue regarding whether Manhattan College is an exempt religiously-affiliated educational institution. Petitioner – Manhattan College Adjunct Faculty Union, New York State United Teachers AFT/NEA/AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
2850 Grand Island Boulevard Operating Company LLC d/b/a Elderwood at Grand Island (03-RC-184298) Grand Island, NY, April 21, 2017. The Board denied review of the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision and Order on Challenged Ballots and Objections as it raised no substantial issues warranting review. The Regional Director had found that the Employer had not carried its burden of demonstrating that Team Leader LPNs are statutory supervisors. Acting Chairman Miscimarra concurred with the denial of review, but restated his disagreement with the Board’s standard that it should disregard evidence when it is conclusory, unaccompanied by specific examples, provided in response to leading questions, or is a mere paper showing, and reiterated his position, as first discussed in Buchanan Marine, LP, 363 NLRB No. 58 (2015), that the Board cannot disregard or discount relevant evidence merely because it could have been stronger, more detailed, or supported by more specific examples. Petitioner – 1199 SEIU United Healthcare Workers East. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
C Cases
Eastland Food Products, Inc. (01-CA-182772) Providence, RI, April 18, 2017. No exceptions having been filed to the March 1, 2017 decision of Administrative Law Judge Andrew S. Gollin’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order. Charge filed by United Food and Commercial Workers International Union, Local 328.
Florio Food Corp. d/b/a Cannoli Factory (29-CA-187620) Wyandanch, NY, April 18, 2017. The Board granted the General Counsel’s request for special permission to appeal the Administrative Law Judge’s Order Partially Denying the Respondent’s Motion for a Bill of Particulars. On the merits, the Board reversed the judge’s ruling granting the motion in part, finding that the complaint as written fully satisfied the notice pleading requirements of Section 102.15 (a) and (b) of the Board’s Rules and Regulations. The Board further found that the complaint met the standard of Artesia Ready Mix Concrete, Inc., 339 NLRB 1224 (2003), as it advised the Respondent, in plain language, of the conduct claimed to constitute the unfair labor practice and the dates on which those actions allegedly occurred. Charge filed by Local 713 International Brotherhood of Trade Unions, I.L.A., AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Pavestone Company (01-CA-184702) Middleboro, MA, April 19, 2017. The Board denied the Employer’s petition to revoke an investigative subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoena. The Board evaluated the subpoena in light of the Region’s conditional acceptance of the Employer’s stipulation concerning commerce and the Board’s jurisdiction. In addition, the Board stated that the subpoena as written describes with sufficient particularity the employees to whom the requests apply, noting that the Employer did not argue otherwise. The Board also noted that, to the extent that the Employer has provided some of the requested material, it is not required to produce that information again. Acting Chairman Miscimarra would grant the petition to revoke to the extent that the requests pertaining to “all employees” encompass non-statutory employees. Charge filed by International Brotherhood of Teamsters, Local 653. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Menard, Inc. (18-CA-181821) Eau Claire, WI, April 19, 2017. The Board denied the Employer’s motion to dismiss the amended complaint, because the Employer did not demonstrate that the amended complaint failed to state a claim upon which relief can be granted. In addition, to the extent that the Employer sought summary judgment on the basis that the allegations of the complaint have been previously resolved by the Board or do not constitute unfair labor practices, the Board denied the motion, because the Employer did not establish that there are no genuine issues of fact and that it is entitled to a judgment as a matter of law. Charge filed by Local 153, Office & Professional Employees International Union, AFL-CIO. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Fox Rent-A-Car (12-CA-186537) Fort Lauderdale, FL, April 19, 2017. The Board (Members Pearce and McFerran; Acting Chairman Miscimarra, dissenting), denied the Employer’s petition to revoke the subpoena duces tecum, as the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought. The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by Teamsters Local Union No. 769. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
Red Apple 180 Myrtle Avenue Development, LLC (29-CA-184816, et al.) Brooklyn, NY, April 20, 2017. The Board denied the Employer’s petition to revoke investigative subpoenas ad testificandum addressed to the Employer’s employees, based on the Employer’s lack of standing to file a petition to revoke subpoenas addressed to third parties. In addition, the Board found that, even assuming that the Employer had standing to file the petition, it was lacking in merit, as the subpoenas sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and the Employer failed to establish any other legal basis for revoking the subpoenas. Acting Chairman Miscimarra agreed that the General Counsel described with sufficient particularity the evidence sought, but solely because the General Counsel’s opposition to the petition described the nature of the charges and provided general information regarding the subject matter. In his view, however, the subpoena itself should describe with reasonable particularity the general topics or issues that would be the subject of subpoenaed testimony or other evidence. Charges filed by Local 32BJ, SEIU. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
GVS Properties, LLC (29-CA-077359) Long Island City, NY, April 20, 2017. The Board vacated as moot its August 27, 2015 Order (362 NLRB No. 194).
Cellco Partnership d/b/a Verizon Wireless (28-CA-145221) Nationwide, April 21, 2017. The Board denied the Charging Party’s motion for reconsideration and her supplemental motion for reconsideration of the Board’s Decision and Order reported at 365 NLRB No. 38 (2017), on the basis that the Charging Party had not identified any material error or demonstrated extraordinary circumstances warranting reconsideration. Acting Chairman Miscimarra noted that, while he adheres to the views he expressed in his separate opinion in the underlying decision, he concurs with his colleagues that the Charging Party had not presented extraordinary circumstances warranting reconsideration. Charge filed by an individual. Acting Chairman Miscimarra and Members Pearce and McFerran participated.
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Appellate Court Decisions
The Cement League and Northeast Regional Council of Carpenters and New York City and Vicinity District Council of Carpenters, Party in Interest, Board Case No. 03-CA-126938 (reported at 363 NLRB No. 117) (2d Cir. decided April 21, 2017)
In an unpublished summary order, the Court enforced the Board’s order issued against the Cement League, an organization of New York City construction contractors that bargains on behalf of its Employer members with various labor organizations, including the NYC Council, a regional council of the United Brotherhood of Carpenters and Joiners of America. Prior to this case, the NYC Council was subject to a Department of Justice RICO lawsuit alleging that it had connections to organized crime, entered into unlawful arrangements for non-union individuals to work on projects “off the books” and for below bargained-for wages, and bribed particular Employers and shop stewards or union representatives to condone such activities. In 1994, the NYC Council entered into a consent decree that established judicial oversight and a court-appointed monitor to oversee certain ongoing anticorruption measures. As part of that monitoring, the district court judge approved the parties’ collective-bargaining agreement for consistency with the 1994 RICO consent decree.
In the instant case, the Administrative Law Judge found that the Cement League violated Section 8(a)(1) by maintaining or otherwise giving effect to hiring provisions in its collective-bargaining agreement with the NYC Council that gave preference to its member-employees. In the absence of exceptions, the Board adopted the judge’s recommended finding, and rejected on its merits the only issue presented to it—the parties’ defensive contention that the terms of the Board’s order invalidating the relevant contract provisions would conflict with the district court’s prior approval of the collective-bargaining agreement. The Board concluded that setting aside the provisions that violate the Act would not conflict with the district court’s important anticorruption objectives, reasoning that the district court did not consider compliance with the Act and did not premise approval upon it, that the challenged provisions did not appear to have been approved on the basis of an anticorruption purpose or effect, and that any such anticorruption goal could be served instead by the Act’s-compliant hiring provisions.
On review, the Court agreed, holding: “To the extent that the NLRB is correct about the district court’s analysis, the NLRB’s order has a reasonable basis in law and is not arbitrary and capricious.” The Court then denied the petition for review and granted enforcement, but also ordered that issuance of the mandate be held in abeyance for 30 days or until the parties advise the Court of the monitoring-judge’s view concerning whether the enforcement order “bears upon matters that are within the jurisdiction of his supervision of [the] consent order.”
The unpublished Court’s decision is here.
Acuity Specialty Products, Inc., d/b/a Zep Inc., Board Case No. 32-CA-075221 (reported at 363 NLRB No. 192) (5th Cir. decided April 20, 2017)
In an unpublished per curiam opinion, the Court granted the Employer’s petition for review after briefing, but without oral argument. The Court noted that the Board “admits that its order directly contravenes our decisions” in Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), and D.R. Horton v. NLRB, 737 F.3d 344 (5th Cir. 2013). On the basis of that binding precedent, the Court rejected the Board’s finding that the Employer violated Section 8(a)(1) by maintaining an alternative dispute resolution policy that requires employees to waive their rights to pursue class or collective actions involving employment-related claims in all forums.
Agreeing with the Employer, the Court further held that the Board’s finding that the policy violated Section 8(a)(1) because employees reasonably could read it as restricting their right to file unfair-labor-practice charges with the Board was contrary to the terms of the policy. The Court noted that the policy explicitly excluded “matters within the jurisdiction of the National Labor Relations Board,” and found that the clarity of that exclusion was bolstered by its location below a section heading specifying what claims were not covered by the policy.
The Court’s unpublished opinion is here (link is external).
Allied Aviation Services Company of New Jersey, Board Case No. 22-CA-127150 (reported at 362 NLRB No. 173) (D.C. Cir. decided April 18, 2017)
In a published opinion in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this provider of fueling services for commercial aviation at Newark Liberty International Airport after a 44-member unit of its Fueling Supervisors/Dispatchers/Operations Supervisors, Maintenance Supervisors, and Tank Farm Supervisors voted in June 2012 to be represented by Local 553, International Brotherhood of Teamsters. In doing so, the Court upheld the Board’s determinations that the Employer is covered by the Act, rather than by the Railway Labor Act (RLA), and that the employees in question, despite their job titles and the Employer’s claims, were not supervisors excluded from coverage under Section 2(11).
The Court noted that the status of an employer as a RLA-covered rail carrier, common air carrier, or “company which is directly or indirectly owned or controlled by or under common control of any carrier,” 45 U.S.C. §§ 151 First, 181, is determined under the “function and control” test articulated by the National Mediation Board (NMB), which administers the RLA. Under that test, the Court held that the Board properly rejected the Employer’s jurisdictional claim of RLA-coverage based on the lack of record evidence of carrier control. Specifically, the Court upheld the Board’s findings that the Employer failed to present evidence that the carriers at Newark Airport hold out the unit members to the public as their own employees, exercise control over how the employer runs its operations, supervise the unit members to a degree sufficient to establish control, or exert meaningful control over personnel decisions.
Regarding the Employer’s assertion of supervisory status, the Court agreed with the Board that the Employer had failed to present evidence supporting its claims that the employees exercise disciplinary authority or responsibly direct other workers. On the issue of discipline, the Court stated that the Employer’s evidence “shows only that the unit members file ‘reportorial’ forms recounting employee misconduct, which are then taken into account by higher-ups who make the disciplinary decisions.” On the issue of responsible direction, the Court concluded that instead of “shouldering its burden” to prove the claim, the Employer “merely point[ed] to the paucity of evidence of nonsupervision.”
The Court’s opinion is here (link is external).
Pier Sixty, LLC, Board Case No. 02-CA-068612 (reported at 362 NLRB No. 59) (2d Cir. decided April 21, 2017)
In a published opinion, the Court enforced the Board’s order issued against this catering company in Manhattan for unfair labor practices committed in the weeks before its servers voted in an October 2011 election to be represented by the Evelyn Gonzalez Union. In doing so, the Court held that the Employer had forfeited its challenge to the designation of Lafe Solomon as Acting General Counsel under the Federal Vacancies Reform Act of 1998, 5 U.S.C. § 3345, et seq., by not raising the issue before the Board. The Court also upheld the Board’s finding that an employee’s Facebook post was protected activity and that the profanity included in the post did not cause him to lose the Act’s protection.
The Board (then-Chairman Pearce and Members McFerran and Johnson) found, in agreement with the Administrative Law Judge, that the Employer violated Section 8(a)(1) by threatening employees with discharge, job loss, and the loss of benefits, by informing employees that bargaining would start from scratch if the Union were elected, and by disparately applying a “no talk” rule. Regarding the judge’s finding that the Employer violated Section 8(a)(3) and (1) by discharging an employee because of his protected concerted and union activities, which included a comment in support of the Union made in a Facebook post, the Board agreed that the Facebook post was protected and found (Member Johnson, dissenting) that the post, which included profane language, did not cause the employee to lose the Act’s protection.
Before the Court, the Employer raised, for the first time, a challenge to the designation of Acting General Counsel Solomon. Citing the jurisdictional bar of Section 10(e), the Court, in an opinion authored by Circuit Judge Cabranes, held the issue was forfeited because the Employer had not raised it before the Board. The Court also explained: “Our precedents make clear, moreover, that even an apparently meritorious challenge to the authority of an NLRB agent in itself does not qualify as an ‘exceptional circumstance’ [under Section 10(e)] allowing the party to raise the argument for the first time before our Court,” citing Paulsen v. Remington Lodging & Hosp., LLC, 773 F.3d 462 (2d Cir. 2014) (rejecting as untimely a FVRA challenge to Solomon’s authority to authorize an injunction under Section 10(j)); NLRB v. Newton‐New Haven Co., 506 F.2d 1035 (2d Cir. 1974) (refusing to grant relief on an untimely challenge to a Board decision issued by a panel consisting of one Board member and two staff attorneys, contrary to the NLRA’s quorum requirements). Further, the Court noted that the D.C. Circuit in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), “took care to voice its support for our conclusion that petitioners like [the Employer], who fail to raise an FVRA argument before the Board, will not be heard for the first time in the courts,” citing 796 F.3d at 82–83 (“We address the FVRA objection in this case because the petitioner raised the issue in its exceptions to the ALJ decision as a defense to an ongoing enforcement proceeding.”).
On the merits, the Court upheld the Board’s unlawful discharge finding. The Court noted that, although it is not the exclusive framework for evaluating whether employee activities are protected, the Board recently has applied a nine-factor, totality-of-the-circumstances test in social media cases, and did so here. See 362 NLRB No. 59. However, the Court stated, because the Employer did not object to the judge’s application of that nine-factor test, “we need not, and do not, address the validity of that test in this opinion.” Regarding the Employer’s defense, the Court held that the Employer had failed to meet its burden of showing that the employee’s behavior was so egregious as to lose the Act’s protection, noting that several factors informed its conclusion. For instance, the Court explained that, even though the employee’s Facebook post was dominated by vulgar attacks on his supervisor and his supervisor’s family, it included workplace concerns—“management’s allegedly disrespectful treatment of employees, and the upcoming union election.” Further, the Court noted that the record contains evidence that the Employer “consistently tolerated profanity among its workers,” and that the employee made the comments on Facebook, “an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era.” Finally, the Court summarily enforced the uncontested Section 8(a)(1) findings.
The Court’s opinion is here (link is external).
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Administrative Law Judge Decisions
Aqua-Aston Hospitality, LLC d/b/a Aston Waikiki Beach Hotel and Hotel Renew (20-CA-167132, et al.; JD(SF)-14-17) Honolulu, HI, April 17, 2017. Erratum issued to the April 12, 2017 decision of Administrative Law Judge Jeffrey D. Wedekind. Charges filed by Unite Here! Local 5. Erratum Amended Decision.
United States Postal Service (07-CA-170211; JD-24-17) Grand Rapids, MI. Administrative Law Judge Christine E. Dibble issued her decision on April 18, 2017. Charge filed by an individual.
County Concrete Corporation (22-CA-171328; JD(NY)-08-17) Kenvil, NJ. Administrative Law Judge Mindy E. Landow issued her decision on April 18, 2017. Charge filed by Local 863, International Brotherhood of Teamsters.
ImageFirst (22-CA-161563 and 22-CA-181197; JD-25-17) Clifton, NJ. Administrative Law Judge Arthur J. Amchan issued his decision on April 18, 2017. Charges filed by Laundry Distribution and Food Service Joint Board, Workers United, a/w Service Employees International Union.
Novato Healthcare Center (20-CA-168351; JD(SF)-15-17) Novato, CA. Administrative Law Judge Amita Baman Tracy issued her decision on April 20, 2017. Charge filed by National Union of Healthcare Workers (NUHW-CNA).
HRHH Gaming Senior Mezz, LLC d/b/a Hard Rock Hotel & Casino (28-CA-183553; JD(SF)-16-17) Las Vegas, NV. Administrative Law Judge Mara-Louise Anzalone issued her decision on April 21, 2017. Charge filed by General Teamsters, Airline, Aerospace and Allied Employees, Warehousemen, Drivers, Construction, Rock and Sand, Local 986, a/w International Brotherhood of Teamsters.