Today’s Labor Updates:
NLRB’s Notice of Bargaining Obligation Purports to Explain All
The Largest Oil Worker Strike Since 1980 Is FINALLY Over
Summary of NLRB Decisions for Week of June 1 – 5, 2015
The NLRB expands employee protections yet again: will there be anything left not considered protected concerted activity?
NLRB’s Notice of Bargaining Obligation Purports to Explain All
Article By: Howard M. Bloom Philip B. Rosen
Amid the noise of the National Labor Relations Board’s new representation case rules, which became effective on April 14, 2015, the Board, without any fanfare, has begun issuing a new document, entitled “Notice of Bargaining Obligation,” as a companion piece accompanying the “Certification of Representative” the Board issues after a union prevails in a representation election.
The new one-page document purports to explain to a union and an employer the employer’s collective bargaining obligations after the employer has lost an NLRB-conducted representation election. Rife with legalese, it covers the full gamut of possibilities.
Here, in full, is what the document says:
“In the recent representation election, a labor organization received a majority of the valid votes cast. Except in unusual circumstances, unless the results of the election are subsequently set aside in a post-election proceeding, the employer’s legal obligation to refrain from unilaterally changing bargaining unit employees’ terms and conditions of employment begins on the date of the election.
“The employer is not precluded from changing bargaining unit employees’ terms and conditions during the pendency of post-election proceedings, as long as the employer (a) gives sufficient notice to the labor organization concerning the proposed change(s); (b) negotiates in good faith with the labor organization, upon request; and (c) good faith bargaining between the employer and the labor organization leads to agreement or overall lawful impasse.
“This is so even if the employer, or some other party, files objections to the election pursuant to Section 102.69 of the Rules and Regulations of the National Labor Relations Board (the Board). If the objections are later overruled and the labor organization is certified as the employees’ collective-bargaining representative, the employer’s obligation to refrain from making unilateral changes to bargaining unit employees’ terms and conditions of employment begins on the date of the election, not on the date of the subsequent decision by the Board or court. Specifically, the Board has held that, absent exceptional circumstances, (footnote omitted) an employer acts at its peril in making changes in wages, hours, or other terms and conditions of employment during the period while objections are pending and the final determination about certification of the labor organization has not yet been made.
“It is important that all parties be aware of the potential liabilities if the employer unilaterally alters bargaining unit employees’ terms and conditions of employment during the pendency of post-election proceedings. Thus, typically, if an employer makes post-election changes in employees’ wages, hours, or other terms and conditions of employment without notice to or consultation with the labor organization that is ultimately certified as the employees’ collective-bargaining representative, it violates Section 8(a)(1) and (5) of the. National Labor Relations Act since such changes have the effect of undermining the labor organization’s status as the statutory representative of the employees. This is so even if the changes were motivated by sound business considerations and not for the purpose of undermining the labor organization. As a remedy, the employer could be required to: 1) restore the status quo ante; 2) bargain, upon request, with the labor organization with respect to these changes; and 3) compensate employees, with interest, for monetary losses resulting from the unilateral implementation of these changes, until the employer bargains in good faith with the labor organization, upon request, or bargains to overall lawful impasse.”
This new document appears to be the latest Board move to increase its visibility by being pro-active — in this case, by counseling unions that they have the right to file unfair labor practice charges against employers that engage in any of the prohibited conduct described in the Notice. Here are highlights of the Board’s efforts:
· In 2012, the Board launched a webpage devoted to protected concerted activity. NLRB Chairman Mark Gaston Pearce noted at the time, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act. . . . Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.” (This followed the rejection earlier that year by a federal appeals court in Washington of another attempt by the Board — the NLRB’s 2011 workplace poster regulations. The NLRB asserted the poster was necessary because of the public’s lack of knowledge and understanding of the NLRA.)
· In 2013, the Agency began making available to the public a mobile app, and shortly thereafter debuted its protected concerted activity webpage, informing employees that “[e]mployees have the right to act together for their mutual aid and protection, even if they are not in a union.”
· Earlier this year, the NLRB began tweeting exhortations to non-union employees to utilize the Agency’s services and notifications about the broad jurisdictional reach of the NLRA.
The Notice of Bargaining Obligation underscores the multi-faceted nature of and pitfalls associated with an employer’s bargaining obligation after the employer loses an NLRB election. Non-union employers wishing to remain union-free, and therefore, avoid a complicated bargaining obligation, should implement a preventive plan today. (See our article, Preparing for Labor Board’s Quickie Election Rule, for an example of such a plan.) Newly unionized employers should consult labor counsel before making any changes to employees’ terms and conditions of employment or entering into collective bargaining with their employees’ newly certified union.
The Largest Oil Worker Strike Since 1980 Is FINALLY Over
Jeff Reed
On Tuesday, striking workers from Marathon Petroleum Corp’s Galveston Bay Refinery ratified a new contract, ending a nearly five month strike, local United Steelworkers Union (USW) officials said. Thus does the largest oil worker strike in 35 years come to an end. The Galveston refinery was the last of the 15 locations that were on strike to ratify a contract.
The USW said in a text message received by Oilpro, “Local 13-1 @ MPC GBR has ratified [the] new agreement. All NOBP 2015 strikers now returning to work- Let’s continue to fight for safe refineries from inside our facilities.”
About 1,200 workers at the refinery went on strike on February 1. Approximately 90% of the more than 1,000 workers cast secret ballots at their local union hall in Texas City, Texas, on Tuesday.
Marathon’s Galveston Bay Refinery has a capacity of 451,000 bpd. The refinery began operation in 1934 as a Pan American Oil refinery and was later purchased by Amoco. In 1998, refinery ownership changed as Amoco Oil merged with BP. Since 2005, the refinery has undergone significant renovation and upgrade to units and site infrastructure. MPC purchased the refinery from BP in 2013. It is one of the largest and most complex refineries in the US.
Per the terms of the contract and related return-to-work agreement, the USW-represented workers will resume working on July 6. Since the walkout began, Marathon has used temporary replacement workers to keep the refinery in operation.
Marathon spokesman Brandon Daniels said in a statement, “We are pleased to learn that our union represented employees voted to ratify the settlement offer which was agreed to by the company and the union committee.”
The nation-wide strike started on February 1 with nine locations. The strike later expanded to 15 refineries, chemical facilities and a cogeneration plant. In March, a tentative national agreement was reached. However, local strikes continued as each location had to address local issues prior to ratifying contracts.
Lee Medley, president of the United Steelworkers Local 13-1, expressed pride in the union’s negotiating committee and members. “It has been a tough ordeal, but they all stood strong.”
Summary of NLRB Decisions for Week of June 1 – 5, 2015
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 Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.
Summarized Board Decisions
Pacific Bell Telephone Company d/b/a AT&T and Nevada Bell Telephone Company d/b/a AT&T (20-CA-080400, et al.; 362 NLRB No. 105) San Francisco, CA, June 2, 2015.
The Board affirmed the Administrative Law Judge’s findings that the Respondents violated the Act by prohibiting employees from wearing a variety of union insignia, including buttons and stickers reading “WTF Where’s the Fairness,” “FTW Fight to Win,” “Cut the Crap! Not My Healthcare,” and “No on Prop 32.” The Board found that none of the buttons or stickers contained content so vulgar and offensive as to lose the protection of the Act and that the Respondents had not demonstrated any special circumstances that justified their prohibition on the insignia. Administrative Law Judge John J. McCarrick issued his decision on April 23, 2014. Charges filed by Communication Workers of America, AFL-CIO. Members Miscimarra, Hirozawa, and McFerran participated.
***
The Finley Hospital (33-CA-014942, et al.; 362 NLRB No. 102) Dubuque, Cascade, and Elklander, IA, June 3, 2015.
A Board panel majority consisting of Chairman Pearce and Member McFerran affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) by unilaterally discontinuing annual raises required under the collective-bargaining agreement when the agreement expired. The majority agreed with the judge that contract language requiring payment of annual raises during the term of the agreement did not clearly and unmistakably waive the Union’s statutory right to bargain over discontinuance of the raises upon contract expiration. In dissent, Member Johnson would have found that the Respondent’s duty to give raises was limited to the duration of the contract, and thus that it acted lawfully by discontinuing the raises after the contract expired.
The Board unanimously agreed with the judge that the Respondent violated Section 8(a)(5) by failing to provide the Union with requested information concerning the Respondent’s unit operations councils. The majority (Chairman Pearce and Member McFerran) affirmed the judge’s finding that the Respondent unlawfully failed to provide and/or timely provide information regarding nurses’ absences due to work-related illnesses. Member Johnson, dissenting, would have found that the Respondent did not categorically refuse to provide the information, but merely asked for clarification of the Union’s request, which was not forthcoming.
The Board panel majority (Chairman Pearce and Member McFerran) agreed with the judge that the Respondent violated Section 8(a)(5) by failing either to provide the Union with certain confidential information relating to the discharge of a nurse or to attempt to accommodate the Union’s need for that information. However, the same majority reversed the judge and found that the Respondent’s attempt to accommodate the Union’s need for other information concerning the discharge was untimely. Dissenting, Member Johnson would have found the Respondent’s attempts at accommodation both reasonable and timely, as they were made several months before the arbitration of the discharge grievance. Charges filed by Service Employees International Union, Local 199. Administrative Law Judge Ira Sandron issued his decision on April 25, 2007. Chairman Pearce and Members Johnson and McFerran participated.
***
Chickasaw Nation d/b/a Winstar World Casino (17-CA-025031 and 17-CA-025121; 362 NLRB No. 109) Thackerville, OK, June 4, 2015.
On a stipulated record, the Board declined to assert jurisdiction over the Respondent, an Indian tribe in its capacity as operator of the Winstar World Casino, pursuant to San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004), enfd. 475 F.3d 1306 (D.C. Cir. 2007). The Board found that application of the Act would abrogate the Chickasaw Nation’s right, contained in the 1830 Treaty of Dancing Rabbit Creek, to be “secure” “from and against all laws” except those passed by Congress under its authority over Indian affairs. Charges filed by International Brotherhood of Teamsters Local 886, affiliated with The International Brotherhood of Teamsters. Members Miscimarra, Hirozawa, and McFerran participated.
***
L’Hoist North America of Tennessee, Inc. (10-CA-136608; 362 NLRB No. 110) Sherwood, TN, June 5, 2015.
The Board denied the Respondent’s motion for summary judgment on the grounds that the Respondent failed to establish that there are no genuine issues of material fact warranting a hearing and that it is entitled to judgment as a matter of law. In a concurrence, Member Miscimarra agreed with his colleagues that this case involves genuine issues of material fact that require a hearing, but he also expressed his view that in opposing a respondent’s motion for summary judgment, the General Counsel must identify the material facts in dispute and reasonably justify the need for a hearing. Charge filed by United Mine Workers of America, District 17. Chairman Pearce and Members Miscimarra and McFerran participated.
***
Lifesource (13-CA-091617; 362 NLRB No. 107) Rosemont, IL, June 5, 2015.
On December 21, 2012, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No.45 (2012), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision.
On December 16, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 16, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.
The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.
The Board rejected the Respondent’s contention, argued for the first time in this proceeding, that the Regional Director was invalidly appointed and without authority to act in this matter. The Board noted that the Respondent’s contention was based on its argument that Member Becker was not validly appointed and, therefore, the Board lacked a quorum on December 13, 2011 when the Regional Director was appointed. The Board found that (1) the Respondent did not raise this issue previously and therefore was estopped from challenging the Regional Director’s authority here and (2) Member Becker’s appointment is not subject to challenge under the Supreme Court’s decision in Noel Canning, supra, and the Board unquestionably had a quorum when the Regional Director was appointed. Charge filed by Local 881, United Food and Commercial Workers. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Bread of Life, LLC d/b/a Panera Bread (07-CA-088519; 362 NLRB No. 106) Kalamazoo, IL, June 5, 2015.
On November 21, 2012, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 24 (2012), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision.
On December 16, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the December 16, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.
The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.
The Board rejected the Respondent’s contention, argued for the first time in this proceeding, that “[t]he representation election and the certification of the bargaining unit are of no legal force or effect because they were conducted at a time when the Regional Director and the General Counsel were without legal authority to act.” The Board noted that the Respondent’s contention was based on its argument that Acting General Counsel Lafe Solomon was not properly appointed under the NLRA or the Federal Vacancies Reform Act. The Board found that (1) the Respondent did not raise this issue previously and therefore was estopped from challenging the authority of the General Counsel or the Regional Director here; (2) the authority of a Regional Director to act in representation case proceedings is derived a 1961 delegation from the Board, not the General Counsel, and that delegation has never been revoked; and (3) even if the authority of the Acting General Counsel were relevant, the argument that the Acting General Counsel was not properly appointed lacks merit. Charge filed by Local 70, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM), AFL-CIO, CLC. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Newark Portfolio JV, LLC (22-CA-100534; 362 NLRB No. 108) Newark, NJ, June 5, 2015.
On May 31, 2013, the Board issued a Decision and Order in this test-of-certification case, reported at 359 NLRB No. 124 (2013), granting the General Counsel’s motion for summary judgment on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm. Following the Supreme Court’s decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Board issued an order setting aside the Decision and Order, and retained this case on its docket.
On November 12, 2014, the Board issued a further Decision, Certification of Representative, and Notice to Show Cause why the General Counsel’s motion should not be granted, providing leave to the General Counsel to amend the complaint to conform with the current state of the evidence, including whether the Respondent had agreed to recognize and bargain with the Union after the November 12, 2014 certification of representative issued. The Respondent filed an answer to the amended complaint and an opposition to the General Counsel’s motion.
The Board granted the General Counsel’s motion, finding that the representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding and that the Respondent did not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding.
The Board rejected the Respondent contention, set forth in its answer to the amended complaint that because the Board lacked a quorum from January 4, 2012, until August 7, 2013, under NLRB v. Noel Canning, supra, the Board and its agents could not have certified the Union prior to August 7, 2013. The Board noted that it certified the Union on November 12, 2014. The Board further found that to the extent the Respondent’s answer asserted that the Regional Director lacked authority to process the case prior to August 7, 2013, that argument lacked merit. Charge filed by Residential Laborers Local 55, Laborers International Union of North America. Chairman Pearce and Members Hirozawa and McFerran participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
MVM, Inc. (05-RD-143548) Bethesda, Poolesville, Gaithersburg, Rockville, and Baltimore, Maryland, June 1, 2015. Order denying the United Security and Police Officers of America (USPOA)’s Request for Review of the Regional Director’s Supplemental Decision and Certification of Representative. In denying review, Member Johnson did not rely on the Regional Director’s suggestion that documents submitted by USPOA in support of its objections do not constitute objectionable conduct under Midland National Life Insurance Co., 263 NLRB 127 (1982). Petitioner—an individual. Union—United Security and Police Officers of America (USPOA). Intervenors—National League of Justice and Security Professionals; International Union, Security, Police and Fire Professionals of America (SPFPA). Members Hirozawa, Johnson and McFerran participated.
SSC Methuen Operating Company LLC, d/b/a Methuen Health & Rehabilitation Center (01-RC-137636) Methuen, MA, June 1, 2015. Order directing Regional Director to count a void ballot, blank on the front with the word “yes” written on the back, as a “yes” vote and issue a revised tally of ballots, and thereafter take appropriate action regarding four determinative challenged ballots. Petitioner—International Association of Machinists and Aerospace Workers, District Lodge 15, AFL-CIO. Chairman Pearce and Members Johnson and McFerran participated.
Paragon Systems, Inc. (10-UC-138113) Birmingham, AL, June 3, 2015. Order denying the Petitioner’s Request for Review as not raising substantial issues as to whether the Regional Director properly dismissed the Petitioner’s petition to clarify all of the Employer’s bargaining units into one state-wide unit. Petitioner—The Protection & Response Officers of America, Inc. Intervenors—Security Police Fire Professionals of America and United Government Security Officers of America International Union, Local 212 (USGOA). Members Hirozawa, Johnson, and McFerran participated.
Keystone Automotive Operations, Inc. (32-RC-137319) Stockton and Union City, CA, June 4, 2015. Order granting the Petitioner’s Request for Review of the Regional Director’s overruling its objection to the conduct of the election regarding manager “ride-alongs” with its drivers prior to the election. The Board remanded the objection to the Regional Director for consideration with other objections currently scheduled for hearing. Member Johnson stated that he would have adopted the Regional Director’s recommendation to overrule the objection without a hearing as within the Regional Director’s sound discretion. Petitioner—International Brotherhood of Teamsters, Local 853. Members Hirozawa, Johnson, and McFerran participated.
Labor for Hire, Inc. (29-RC-132423) Brooklyn, NY, June 4, 2015. Order denying Petitioner’s Request for Review of the Regional Director’s Order Dismissing Petition and Canceling the Election on the ground that it raises no substantial issues warranting review. Petitioner— Consolidated Commercial Workers of America, Local 528, affiliated with NOITU-IUJAT. Chairman Pearce and Members Miscimarra and Hirozawa participated.
Go New York Tours Inc. (02-RC-147813) New York, NY, June 5, 2015. No exceptions having been filed to the Regional Director’s overruling of the Employer’s objection to an election held April 13, 2015, the Board adopted the Regional Director’s recommendations and certified the Petitioner, Transport Workers Union of Greater New York Local 100, AFL-CIO, as the exclusive collective-bargaining representative of the employees in the appropriate unit.
FedEx Freight, Inc. (32-RC-144041) Stockton, CA, June 5, 2015. A unanimous panel of the Board granted the Employer’s request for special permission to appeal but denied the appeal on the merits. The Board found no merit in the Employer’s contention that the Regional Director erred in denying its motion to postpone the scheduled hearing on the Employer’s objections pending a determination on its unfair labor practice charges against the Union. Members Hirozawa, Johnson, and McFerran participated.
C Cases
Operative Plasterers’ & Cement Masons’ International Association Local 200, AFL-CIO and Operative Plasterers’ & Cement Masons’ International Association, AFL-CIO (Standard Drywall, Inc.) (21-CD-000659, et al.) Corona, CA, June 3, 2015. The Board denied Standard Drywall, Inc.’s request for review of the General Counsel’s decision affirming the Regional Director’s compliance determination. Charges filed by Standard Drywall, Inc. Members Hirozawa, Johnson, and McFerran participated.
The District Council of New York City and Vicinity of the United Brotherhood of Carpenters and Joiners of America (Tutor Perini Corporation) (02-CB-130379, et al.) New Rochelle and Harrison, NY, June 4, 2015. Order approving a formal settlement stipulation between the individual Charging Party, the Respondent Union, and the General Counsel, and specifying actions the Union must take to comply with the National Labor Relations Act. Charges filed by an individual. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Dalton School, Inc., d/b/a Dalton School (02-CA-138611; JD-31-15) New York City, NY. Administrative Law Judge Arthur J. Amchan issued his decision on June 1, 2015. Charge filed by an individual.
Brookdale Senior Living, Inc. d/b/a Emeritus Senior Living (28-CA-134729; JD(SF)-23-15) Phoenix, AZ. Administrative Law Judge Amita Baman Tracy issued her decision on June 2, 2015. Charge filed by an individual.
Casino Pauma (21-CA-125450, et al.; JD(SF)-21-15) Pauma Valley, CA. Administrative Law Judge Ariel L. Sotolongo issued her decision on June 4, 2015. Charges filed by Unite Here International Union.
Wal-Mart Stores, Inc. (13-CA-114222; JD-32-15) Bentonville, AR. Administrative Law Judge Geoffrey Carter issued his decision on June 4, 2015. Charge filed by The Organization United for Respect at Walmart (Our Walmart).
United States Postal Service (07-CA-138249 and 07-CA-138262; JD-34-15) New Baltimore, MI. Administrative Law Judge Christine E. Dibble issued her decision on June 5, 2015. Charges filed by Branch 654, National Association of Letter Carriers (NALC), AFL-CIO.
Vista Del Sol Health Services, Inc. d/b/a Vista Del Sol Healthcare (31-CA-115318, et al.; JD(SF)-24-15) Los Angeles, CA. Administrative Law Judge Eleanor Laws issued her decision on June 5, 2015. Charges filed by SEIU-ULTCW, Service Employees International Union, United Long Term Care Workers.
Cooper Tire & Rubber Company (08-CA-087155; JD-33-15) Findlay, OH. Administrative Law Judge Thomas M. Randazzo issued his decision on June 5, 2015. Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC.
The NLRB expands employee protections yet again: will there be anything left not considered protected concerted activity?
Keith Covington
Bradley Arant Boult Cummings LLP
Blog Labor & Employment Insights
USA June 3 2015
Continuing a trend we’ve reported on in previous blog posts, the National Labor Relations Board (NLRB) recently handed down yet another decision expanding the protections afforded to employees under the National Labor Relations Act (NLRA).
In Sabo, Inc., 362 NLRB No. 81, the NLRB held that Sabo, a vending-machine servicing company, illegally terminated a vending machine route driver, LaDonna George, for voicing concerns about job security to a fellow employee. Over a vigorous dissent, a 2-1 majority found that George’s expression of job security concerns to another employee was protected, concerted activity under the NLRA and terminating her for that activity was unlawful.
The facts are as follows: One Friday, George did not service her route and left work early without notifying management in violation of company rules. That weekend, George saw a “help wanted” ad placed by a local vending machine company. She surmised that her company had placed the ad and that she was on the chopping block.
The following week, she had a brief conversation with a coworker, Steve Boros, about whether he had seen the ad. George speculated that the ad meant their company was about to fire someone and she asked Boros who he thought it might be. Boros told George that he didn’t know, but he believed that George was implying that he was going to be discharged. There was no evidence that, in discussing the matter with Boros, George’s had any intention to induce or initiate any kind of group action.
Boros went to the owners of the company and expressed concern about his job security. The owners assured Boros that he was not going to be fired and quizzed him about why he had raised the issue. After he told the owners about his conversation with George, the owners terminated George for gossiping and telling other employees they were going to be fired.
The NLRB found that George’s termination was unlawful because her conversation with Boros constituted protected concerted activity under the NLRA and ordered the company to reinstate George with full back pay. The NLRB held that employee discussions about “job security”—like discussions about wages—were “inherently concerted” because “job security is about the very existence of an employment relationship, and a statement about an employee’s being let go has a powerful impact on the work force…” The majority went on to say that, because discussions about “job security” were “inherently concerted,” such discussions were also “protected” even in the absence of any evidence that they were “engaged in with the express object of inducing group action.”
NLRB member Philip Miscimarra wrote a dissent highly critical of the NLRB’s decision. He objected to the majority’s use of the “inherently concerted” theory to find the discussion between George and Boros protected by the NLRA, noting that that theory was contrary to established NLRB precedent that “draws a distinction between conversations that look toward group action and ‘mere griping.’” He warned that, under the majority’s reasoning, “all conversations regarding wages, work schedules, or job security” would be protected by the NLRA “even if there is no group-action object and the conversation involves ‘mere griping’ or, as here, a fishing expedition.” Member Miscimarra would have found George’s termination lawful because, during her brief discussion with Boros about the “help wanted” ad, “George did not ask Boros to do anything, let alone to do something for George.”
This decision is yet another reminder of how far the current NLRB is willing to go to uphold employee conduct as protected concerted activity under the NLRA.
It is certainly not difficult to imagine the NLRB extending the “inherently concerted” theory to protect employee discussions about other subjects. Indeed, this slippery slope is very well oiled.