©2017 Jackson Lewis P.C. 1 - cbia.com · ©2017 Jackson Lewis P.C. 13 In G4S Secure Solutions...

Your Guide To The New NLRBQ2 2017 – Issued October 2017

Richard F. Vitarelli, Esq.


Key Topics Addressed

• The New Board

• Policy Cases

• Arbitration Agreements/Class Waiver


• Weingarten Cases

• Employer/Employee Status

• Joint Employment


• Senate Confirms Kaplan and Emanuel for Board Membership

• Board Chairman Miscimarra Declines Second Term, Signals Need toIncrease Board Output

• Peter B. Robb Confirmed as Next Board General Counsel

• U. S. Supreme Court to Hear Challenge to Public Sector Union Fees

• Board GC Memorandum Advocates Extending Weingarten Rights to Non-Union Workplaces

• Public’s Approval of Unions Goes Up, Gallup Reports

• Trumka Advocates for New AFL-CIO Organizing Strategy

• Congress Takes Up Bills Limiting NLRB Authority

• NLRB Releases Updated Version of Outline of Law and Procedure inRepresentation Cases

Hot Off The Presses


• The U. S. Senate has confirmed Republican appointees Marvin Kaplanand William Emanuel, as well as new General Counsel, Peter B. Robb.

• As discussed in previous quarterly updates, member Kaplan is formercounsel to the Commissioner of the Occupational Safety and HealthReview Commission. Member Emanuel and General Counsel Robb weremanagement-side lawyers working in private practice.

• Kaplan’s term runs through August 27, 2020, and Emanuel’s runs throughAugust 27, 2021. Kaplan and Emanuel will serve with fellow RepublicanBoard appointee Chairman Phillip Miscimarra, whose term expires onDecember 16, 2017.

• Kaplan and Emanuel also join Democrats Mark Gaston Pearce and LaurenMcFerran on the Board. Board Member Pearce’s term expires onDecember 16, 2018, and Board Member McFerran’s term expires onDecember 15, 2019.

The New Board


• With a 3-2 Republican majority, the now fully-constituted Board isexpected to reverse many Obama-era pro-employee rulings, includingrules on:• class action waivers• joint employer status• temporary workers• “quickie” elections• expansion of protected concerted activity (e. g., its impact on

workplace policies)• the definition of appropriate bargaining units, and the status of

college/university faculty and student athletes, among others.

• Despite the expected wave of pro-employer rulings, in his first twodecisions as a Board member, Marvin Kaplan has declined to expressdisagreement with decisions and rules issued by the Obama Board.

• In his first decision, Kaplan voted (in an unpublished summary order) todeny an employer’s request to stay an election.

The New Board


• Gallup poll (August 2 to 6, 2017): 61% of adults answered that theyapprove when asked, “Do you approve or disapprove of unions?” This isthe highest percentage since 2003, when 65% said they approve.

• While only 22% of respondents believe unions will become stronger inthe future and 46% believe they will become weaker, 39% of respondentswould like unions in the United States to have more influence. This is thehighest figure recorded in the 18 years Gallup has asked the question.

• Poll results are based on telephone interviews conducted among arandom sample of 1,017 adults at least 18 years old, living in the 50states and the District of Columbia. The margin of error is ±4%.

Union Resurgence


• Employers should make note of this result. A likely significant reason forthe decline in the number of unionized employees in the private sector(now at 6.6%) has been Americans’ negative view of unions.

• Not long ago, the AFL-CIO spent millions of dollars on an advertisingcampaign touting the slogan “Union Yes,” which was designed topromote a positive view of unions (hence, the “Yes”).

• Now that six out of 10 Americans view unions positively, a window hasopened for unions to regain some of the strength they once had

Union Resurgence


• Despite the growing public approval of organized labor, AFL-CIO headRichard Trumka has said that his organization must rethink its organizingstrategy, to increase the scale of its organizing campaigns.

• In remarks given at a recent breakfast for labor and political leaders,Trumka cited the growth of right-to-work organizations and well-fundedpolitical adversaries as creating a new need to organize on a mass scale,suggesting industry-wide organization might be necessary, as opposed tofacility-by-facility organizing drives, which are prevalent now.

New Organizing Strategy

Policies Prohibiting Videotaping


In T-Mobile USA, Inc. v. NLRB, Case No. 16-60284 (5th Cir. Jul. 25, 2017),

(1) A “positive work environment” policy:

[The Employer] expects all employees to behave in a professional mannerthat promotes efficiency, productivity, and cooperation. Employees areexpected to maintain a positive work environment by communicating in amanner that is conducive to effective working relationships with internaland external customers, clients, co-workers, and management.

NLRB – IllegalCourt - Legal


(2) An “integrity” policy:

[W]e expect all employees, officers and directors to exercise integrity,common sense, good judgment, and to act in a professional manner. We donot tolerate inconsistent conduct. While we cannot anticipate everysituation that might arise or list all possible violations, the acts listed beloware unacceptable …

… Arguing or fighting with coworkers, subordinates or supervisors; failing totreat others with respect; or failing to demonstrate appropriate teamwork.

NLRB – IllegalCircuit Court - Legal




(3) A policy banning certain recordings:

To prevent harassment, maintain individual privacy, encourage opencommunication, and protect confidential information employees areprohibited from recording people or confidential information usingcameras, camera phones/devices, or recording devices (audio or video) inthe workplace. Apart from customer calls . . . employees may not tape orotherwise make sound recordings of work-related or workplace discussions.Exceptions may be granted when participating in an authorized [Employer]activity or with [Employer] permission . . . . If an exception is granted,employees may not take a picture, audiotape, or videotape others in theworkplace without the prior notification of all participants.

Outcome - Illegal

Policies Banning Insignias


In G4S Secure Solutions (USA), Inc., 16-16698 (11th Cir. Sept. 1, 2017),

The Employer’s handbook rule stated that “[n]o insignias, emblems, buttons, oritems other than those issued by the company may be worn on the uniformwithout expressed permission.”

The Union filed ULP charges alleging the handbook rule violated the Act.

The Circuit Court, affirming the Board’s decision, held the rule could bereasonably construed as prohibiting employees from wearing union insigniawhile off duty, which the Circuit Court held the Employer had no legitimate basisfor doing.

Policies Governing Confidential Information


Macy’s, Inc., 365 NLRB No. 116 (Aug. 14, 2017). The Employer’s handbook policyprohibited employees from disseminating to the public “confidential” and“personally-identifiable” information about customers, including social securitynumbers and home and office contact information:

What is confidential information? . . . any information, which if known outside theCompany could harm the Company or its business partners, customers or employeesor allow someone to benefit from having this information before it is publicly known.

All Non-Public Information is sensitive. Any information that is not generally availableto the public that relates to the Company or the Company’ customers, employees,vendors, contractors, service providers, systems, etc., that you receive or to whichyou are given access during your employment or while you are performing servicesfor the Company is classified as “Confidential” or “Internal Use Only” under the[Company] Information Security Policy.

Policies Governing Confidential Information


[The Company] maintains certain information regarding its present and formerassociates, customers and vendors. [The Company] respects the privacy of this datawhere it includes personally-identifiable information (“Personal Data”). Personal Dataincludes names, home and office contact information, social security numbers,driver’s license numbers, account numbers and other similar data. [The Company] iscommitted to handling Personal Data responsibly and using it only as appropriate forlegitimate business purposes.

• Balancing the Employer’s confidentiality rights against Section 7 rights, theBoard held the Employer’s rule was lawful, because it narrowly defined theconfidential information as including sensitive information (like social securitynumbers) that is not generally available and could harm the customers ifdisclosed.

• The Board held that while employees do have the right to contact employeesunder Section 7 and to disclose customer information, they do not have theright to access or disclose sensitive information as prohibited by the policy.


In Nat. Captioning Institute, Inc., Nos. 16-CA-182528, et al. (Sept. 18, 2017):

If you opt to post about your job on social media, it must be doneresponsibly . . . [here are] . . . our guidelines . . . .

Do not post about [our] software. A lot of our software . . . was invented by[us] . . . . Don't post screenshots of our software . . . and do not refer to anyof our software by name. Avoid anything other than vague descriptions . . . .

2. Do not identify clients by name. . . . [D]on’t post subjective commentarythat could reflect poorly upon [the Company’s] professionalism orreputation.

3. Refrain from commenting on the quality of other captioning.

Social Media Policies


4. Don't use the [Company’s] name on any posts that are Google-searchable.

Posts . . . are Googleable . . . . It is fine to list your job title and employername on your social media profiles.

5. You are NOT anonymous on the internet. Online harassment . . . [thatdoes not] reflect well upon the Company [is prohibited] . . . .



The ALJ found the social media policy violated the Act, because: 1) the Board hasfound that analogous social media policies unlawfully limited employees’ right tocriticize the employer; 2) the policy unlawfully bans usage of the Employer’sname in Section 7-protected posts about terms and conditions of work; 3) it isunlawfully vague by prohibiting “online harassment [that does not] reflect well”without defining the key terms in that phrase; and 4) it bans software postingswithout leaving an exception for matters touching on collective concerns.



• In Miklin Enterprises, Inc. d/b/a Jimmy John's, Case Nos. 14-3099, No. 14-3211(8th Cir. Jul. 3, 2017), the U. S. Court of Appeals for the Eighth Circuit,reversing a Board decision and the Circuit Court’s panel decision, held theEmployer did not violate the act when it fired employees for placing postersin the city where the Employer did business that implied the Employer’ssandwiches posed a health risk to customers.

• A Minneapolis Jimmy John’s sandwich shop’s sick-leave policy requiredemployees calling in sick to find a replacement worker to cover the sickemployee’s shift.

• Six employees plastered Minneapolis with the posters, which suggested thepolicy would lead employees to go to work sick, thereby contaminatingsandwiches.

Rules Prohibiting Attacks on Employers’ Products and Reputation


• The Union organizing the workers filed ULP charges after the Employer firedthe employees who led the poster campaign.

• The Board found the firings were unlawful, because they were in response toprotected concerted activity, and a three-judge panel of the Circuit Courtaffirmed.

• Reversing the panel, the Circuit Court sitting en banc held the Act “does notprotect such calculated, devastating attacks upon an employer’s reputationand products.” The poster campaign, the Circuit Court held, demonstrated“such detrimental disloyalty as to provide ‘cause’” for the terminations.

Rules Prohibiting Attacks on Employers’ Products and Reputation


• The U. S. Supreme Court heard oral arguments on October 2 in Ernst & Young LLP et al.v. Stephen Morris et al., Case No. 16-300; NLRB v. Murphy Oil USA Inc., Case No. 16-307;and Epic Systems Corp. v. Lewis, Case No. 16-285., the consolidated case in which theCourt is expected to resolve the circuit split over whether an arbitration agreement thatrequires an employee to waive his or her right to bring or participate in a class actionviolates the NLRA.

• The U. S. Department of Justice on June 16, 2017 filed an amicus brief arguing for thelegality of such mandatory arbitration agreements, reversing the DOJ’s position as setout in the Obama-era certiorari petition in the matter, and taking a position opposed tothe NLRB.

• Until the Court renders its decision, the circuit split on this issue remains, with theSixth, Seventh and Ninth Circuits holding class and collective action waivers violate theAct, while decisions of the Second, Fifth, Eighth and Eleventh Circuits have upheld thelegality of such waivers.

• State Courts are not necessarily in sync with federal circuit decisions covering suchstates.

Arbitration Agreements/Class Action Waivers


• On September 7, 2017, Board General Counsel Richard Griffin released amemorandum concluding that non-union employees should have the right torepresentation by coworkers if requested during investigatory interviews thatmay lead to discipline.

• The memorandum advises a Regional Director in Region 6 that the employerin two cases being considered in that Region likely violated the Act when itfailed to provide non-union employees with coworkers representatives oftheir choosing during disciplinary investigatory meetings.

• While the Board had previously held that employees in non-union settingshad a right to representation by a coworker during investigatory interviews,the Board reversed that position in IBM Corp., 341 NLRB 1288 (2004).

Weingarten Rights for Non-Union Employees


• The GC’s position in the recent memorandum effectively advocates a reversalof IBM Corp. and a return to the Board’s earlier position.

• The GC memo also represents a departure from the Board’s position as itstood in a case decided just a few months ago.

Weingarten Rights for Non-Union Employees


• Graduate student research and teaching assistants

• Independent contractors

New Classes of “Employees”


• The New School, 02-RC-143009 (Jul. 6, 2017)

• University of Chicago, 13-RC-198325 (Aug. 8, 2017)

• Boston College, Case No. 01-RC-194148 (Sept. 11, 2017)

New Classes of “Employees” – Graduate Students


• In Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (Aug. 18, 2017),the Board, reversing a Regional Director’s decision, held the crew controllingthe video displayed on a basketball arena’s four-sided display board duringgames were employees under the Act and not independent contractors.

• The Minnesota Timberwolves organization engaged 16 individuals per gamewho selected and developed the content displayed on the arena display.

• While the team engaged the crew on a per-game basis, many had performedwork for the organization for several years, and the team maintained bothproprietary rights to the content displayed and veto power over theproducers’ creative decisions.

• When the Union attempted to organize the producers, the Timberwolvesargued they were independent contractors excluded from coverage by theAct.

New Classes of “Employees” – Independent Contractors


• The Regional Director, accepting the Employer’s argument, dismissed theelection petition, and the Union appealed to the Board.

• Reversing the RD’s decision and directing an election, the Board, applying itsdecision in FedEx Home Delivery found the producers were employees, notcontractors, based on the control the team exerted over the producers, thelong-term relationship between them, and because the team controlledwhen, where and how the producers completed their work.

New Classes of “Employees” – Independent Contractors


• Current status and enforcement of the National Labor Relations Board’s Browning-Ferris Industries decision, which held that two businesses are joint employers under the NLRA — and share collective bargaining responsibility —when one has “potential control” over aspects of the other’s workforce.

• Current status of legislation including the federal “Save Local Business Act”(H.R. 3441) which could potentially roll back different federal agencyinterpretations during the Obama Administration.

Joint Employment


• On September 7, Republican Senators reintroduced the Employee Rights Act(S. 1774), which would, among other things, reverse the “quickie” electionrules, require unions to obtain explicit approval for the use of dues forpolitical purposes, mandate recertification votes following periods wherethere is significant turnover at a workplace and would require that for a unionto win an election, it must win a majority of all eligible voters, not just amajority of all votes cast.

• The bill was introduced by Sen. Orrin G. Hatch (R-UTtah), Sen. LamarAlexander (R-Tenn.) and 13 co-sponsors, and was referred to the SenateCommittee on Health, Education, Labor and Pensions (HELP).

Legislative Developments


• Meanwhile, in the U. S. House, the “Workforce Democracy and Fairness Act,”H. R. 2776, was introduced by Rep. Tim Walberg (R-Mich.) on June 6, 2017,and received prompt attention from the House Committee on Education andthe Workforce.

• Ten other Republican Representatives have signed on as co-sponsors, andSen. Lamar Alexander (R-Tenn.) has introduced a virtually identical bill in theSenate (S. 1350).

• H. R. 2776 would undo many key aspects of the “quickie” election rules,including:

• Requiring any pre-election hearing be held at least 14 days after thefiling of a petition (instead of the average 8-10 days before a hearingunder the current rules);



• Requiring all relevant and material issues that may moot or impact theelection are resolved prior to the holding of the election. (Undercurrent rules, most issues cannot be litigated until after the election);and

• Ensuring that an election is not held sooner than 35 days after thefiling of a petition. (Elections are currently held in about 23 days, andsometimes as quick as 11 days, after petition is filed).

• H. R. 2776 also would change how the Board analyzes an election petition:

• The Board must determine “the” appropriate unit (rather than evaluatewhether a proposed unit is “an” [one of possibly two or more] appropriateunit);



• The bargaining unit must include all employees with a “sufficient”community of interest, according to eight factors, and the burden is on therequesting party to demonstrate that certain employees should be excludedbased on having sufficiently distinct interests; and

• Accretions (additions to an existing bargaining unit) must have an“overwhelming” community of interest before they are added.

• While unions may “campaign” long before a petition is filed, and may directlyask employees whether they support unionization (which is illegal foremployers to do), employers benefit from a longer campaign period toexplain its message and perspective on unionization.

• By emphasizing the importance of inclusion of employees in the bargainingunit, the proposals would prevent unions from carving out dissenters basedon slight differences in their particular work, conditions, or environment.



• Both the U. S. House and the Senate have voted on spending bills for FY 2018that impact spending at the Department of Labor and the NLRB.

• Two U.S. House bills that passed that chamber earlier this year contain cuts toDOL funding by about 11 percent, and include NLRB funding cuts ofapproximately 9%.

• House members attached several riders to the bills that would restrict theNLRB from enforcing its Specialty Healthcare decision, would prevent theNLRB from making any determination of joint-employer status, and wouldprohibit the NLRB from “provid[ing] employees any means of voting throughany electronic means in [a representation] election.”

• Meanwhile, the Senate Committee on Appropriations passed its own Labor-Health and Human Services Department spending bill on September 7, whichwould cut DOL funding by only 1.6%, and hold the NLRB’s funding levelunchanged.



• The bill does not contain the labor-related policy riders contained in theHouse version. Still, it remains to be see whether the full Senate will approvethe measure, since 60 votes are required to pass a spending bill in thatchamber.

• While both houses are considering spending bills, Congressional leaders andthe White House may now negotiate a comprehensive “omnibus” spendingdeal, which could would fund the whole fiscal year and replace the series ofindividual spending bills voted on by the House and the Senate.



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