NLRB overrules Lutheran Heritage on facially neutral workplace rules

In a 3-2 decision involving The Boeing Company, the National Labor Relations Board overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

In place of the Lutheran Heritage “reasonably construe” standard, the Board established a new test: when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.

The Board also announced that, prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.

• Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.

• Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

• Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example would be a rule that prohibits employees from discussing wages or benefits with one another.

Although the maintenance of particular rules may be lawful, the Board held that the application of such rules to employees who have engaged in NLRA-protected conduct may violate the Act, depending on the particular circumstances presented in a given case.

Applying the new standard, the Board concluded that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. The Board majority reasoned that the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns.

Board Chairman Philip A. Miscimarra was joined by Board Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Members Mark Gaston Pearce and Lauren McFerran dissented in the case.

NLRB overrules Browning-Ferris on joint employer liability

In a 3-2 decision involving Hy-Brand Industrial Contractors, the National Labor Relations Board today overruled the Board’s 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015) (“Browning-Ferris”), and returned to the pre–Browning Ferris standard that governed joint-employer liability.

In all future and pending cases, two or more entities will be deemed joint employers under the National Labor Relations Act (NLRA) if there is proof that one entity has exercised control over essential employment terms of another entity’s employees (rather than merely having reserved the right to exercise control) and has done so directly and immediately (rather than indirectly) in a manner that is not limited and routine. Accordingly, under the pre–Browning Ferris standard restored today, proof of indirect control, contractually-reserved control that has never been exercised, or control that is limited and routine will not be sufficient to establish a joint-employer relationship. The Board majority concluded that the reinstated standard adheres to the common law and is supported by the NLRA’s policy of promoting stability and predictability in bargaining relationships.

Applying the reinstated pre–Browning Ferris standard, the Board agreed with an administrative law judge’s determination that Hy-Brand Industrial Contractors, Ltd. (Hy-Brand) and Brandt Construction Co. (Brandt) were joint employers and therefore jointly and severally liable for the unlawful discharges of seven striking employees.

Chairman Philip A. Miscimarra was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Members Mark Gaston Pearce and Lauren McFerran dissented in the case.

NLRB signals Election Rule roll-back

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Tomorrow the NLRB will publish a "Request for Information" [Full text] – the first step in the inevitable roll-back of the Board's controversial 2014 Election Rule. In a lengthy explanation – including two dissenting comments – the Board asks three pretty simple questions:

1. Should the 2014 Election Rule be retained without change?

2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?

3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Election Regulations? If the Board should make changes to the prior Election Regulations, what should be changed?

The public is invited to comment. The deadline is February 12, 2018. 

SCOTUS ducks gay bias case

I'm disappointed that the US Supreme Court decided not to grant certiorari [Order] to review Evans v. Georgia Regional Hospital [Briefs], which raised the question:

"Whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination 'because of . . . sex' encompasses discrimination based on an individual's sexual orientation."

Why not grant certiorari? It could be (Hey, Just a guess) the awkward posture of the case. The Respondent had never been served with summons and complaint. This was because the pro se plaintiff was proceeding in forma pauperis, which allows a magistrate judge to screen out and dismiss the case if it fails to state a claim on which relief may be granted. That's what happened, so the employer never was a party in the case. Once the Supreme Court "requested" a response, the response was:

"The named respondents take no position on whether this Court should grant the petition for a writ of certiorari. If certiorari is granted, they do not intend to participate in the case." [Brief]

The Court often denies certiorari when a case is not a good "vehicle," meaning that it's messed up with side issues that the Court doesn't want to deal with. Could be that happened here. Could be they just want to hold out while some more Circuit Courts weigh in on the main issue. Could be any number of things. We'll never know.

Jameka Evans claimed that her supervisors harassed her and otherwise punished her because of her sexual orientation. The district court magistrate judge said Title VII “was not intended to cover discrimination against homosexuals.” The district court dismissed the case, and the 11th Circuit held that Evans could not state a claim by alleging workplace discrimination because of her sexual orientation. Evans v. Georgia Regional Hospital (11th Cir 03/10/2017) [Opinion].

There is a split of authority between Circuits. Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir 2017) (en banc) [Opinion] held that – indeed – Title VII forbids discrimination on the basis of sexual orientation. The 7th Circuit – typically described as a "conservative" court – voted 8-3 on this issue. Also, two judges (out of three) in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2nd Cir 2017) [Opinion] expressed the opinion that Title VII forbids discrimination on the basis of sexual orientation; however that court held just the opposite because they lacked authority to overrule prior circuit precedent. Zarda v. Altitude Express, Inc., 855 F.3d 76 (2nd Cir 2017) [Opinion] also asserted a lack of authority to overrule prior circuit precedent, but that case is now under en banc review by the entire 2nd Circuit, which heard oral arguments on September 26.

At the same time, there are plenty of court decisions taking essentially the same position as the 11th Circuit's.

Janus v. AFSCME: The government's brief

Janus v. AFSCME: The amicus brief for the United States came in on December 6, and – not surprisingly – it's in support of Janus. Elections matter. When Friedrichs v. California Teachers Association was pending at the US Supreme Court last year, the government weighed in in support of the union. So, with different folks running things, we get different results.

Here's the outline of the government's brief:

The Court should overrule Abood and hold that the First Amendment prohibits compulsory agency fees in public employment

A. Compulsory agency fees in public employment do not withstand First Amendment scrutiny:

1. Exacting scrutiny applies to the compelled subsidization of speech on issues of public policy

2. Public-sector collective bargaining necessarily involves issues of public policy

3. Compulsory agency fees in public employment therefore require exacting scrutiny

4. Compulsory agency fees in public employment do not withstand the appropriate level of scrutiny

B. Compulsory agency fees in public employment do not withstand Pickering balancing

1. Pickering balancing does not apply to petitioner’s First Amendment challenge

2. Even if Pickering balancing applies, compulsory agency fees in public employment are unconstitutional

C. Stare decisis does not require reaffirming Abood

If you want to read the rest of the briefs on file in this case, check out SCOTUSblog.

[For a list of current employment law cases, see Supreme Court Watch.]

NLRB's GC's Roll-Back Agenda

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Peter B. Robb, the NLRB's new General Counsel, on December 1 announced his ambitious roll-back agenda in Memorandum GC 18-02 - entitled "Mandatory Submissions to Advice." It comes in three parts: (1) Past Board decisions that he is putting on the chopping block, (2) Past GC Memos that he has rescinded, and (3) Past "initiatives" that are no longer in effect. This will undoubtedly serve as the roadmap for the new NLRB as it begins to roll back policy changes that have have been made in the previous eight years.

FYI, Here is my video discussing 10 policy changes that I'll especially be watching for.

First, his list of "Board decisions that might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis" --

  • Concerted activity for mutual aid and protection
    • Finding conduct was for mutual aid and protection where only one employee had an immediate stake in the outcome (e.g., Fresh & Easy Neighborhood Market, 361 NLRB No. 12 (2014) – individual sexual harassment claim)
    • Finding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct (e.g., Pier Sixty, LLC, 362 NLRB No. 59 (2015))
  • Common employer handbook rules found unlawful
    • Rules prohibiting “disrespectful” conduct (e.g., Casino San Pablo, 361 NLRB No. 148 (2014))
    • Rules  prohibiting use of  employer trademarks  and logos  (e.g.,  Boch Honda,
    • 362 NLRB No. 83 (2015))
    • No camera/recording rules (e.g., Rio-All Suites Hotel & Casino, 362 NLRB No. 190 (2015); Whole Foods Market, 363 NLRB No. 87 (2015))
    • Rules requiring employees to maintain the confidentiality of workplace investigations (e.g., Banner Estrella Medical Center, 362 NLRB No. 137 (2015))
    • Other rules where the outcome would be different if Chairman Miscimarra’s proposed substitution for the Lutheran Heritage test was applied (see dissent in William Beaumont Hospital, 363 NLRB No. 162 (2016))
  • Purple Communications
    • Finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities (361 NLRB No. 126 2014)
  • Quietflex
    • Finding work stoppages protected under the Quietflex standard in a variety  of contexts (including the retail sales floor) and giving heavier weight to  those factors that tend to favor protection (e.g., Los Angeles Airport Hilton Hotel & Towers, 360 NLRB No. 128 (2014); Nellis Cab Company, 362 NLRB No. 185 (2015); Wal-Mart Stores, Inc., 364 NLRB No. 118 (2016))
  • Off-duty employee access to property
    • Applying Republic Aviation to picketing by off-duty employees (e.g., Capital Medical Center, 364 NLRB No. 69 (2016), equating picketing with handbilling despite greater impact on legitimate employer interest (including  patient care concerns))
    • Finding that access must be permitted under Tri-County unless employees  are excluded for all purposes, including where supervisor expressly authorized access (e.g., Piedmont Gardens, 360 NLRB No. 100 (2014))
  • Conflicts with other statutory requirements
    • Finding racist comments by picketers protected under Clear Pine Mouldings because they were not direct threats (Cooper Tire & Rubber Co., 363 NLRB  No. 194 (2016))
    • Finding social media postings protected even though employee’s conduct could violate EEO principles (e.g., Pier Sixty, LLC, 362 NLRB No. 59 (2015))
  • Weingarten
    • Expanding range of permissible conduct by union representatives in Weingarten interviews (e.g., Fry’s Food Stores, 361 NLRB No. 140 (2015); Howard Industries, 362 NLRB No. 35 (2015))
    • Application of Weingarten in the drug testing context (e.g., Manhattan Beer Distributors, 362 NLRB No. 192 (2015))
  • Disparate treatment of represented employees during contract negotiations
    • Finding unlawful the failure to give a company-wide wage increase to newly represented employees during initial contract bargaining, even though there was no regular, established annual increase and the employer was concerned that it would violate the Act if it unilaterally provided the increase to represented employees (Arc Bridges, Inc., 362 NLRB No. 56 (2015))
  • Joint Employer
    • Finding joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees (Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015))
  • Successorship
    • Finding Burns successorship based on the hiring of predecessor employees that was required by local statute (e.g., GVS Properties, 362 NLRB No. 194 (2015))
    • Finding “perfectly clear” successorship where employer had effectively communicated its intent to set new terms prior to inviting existing employees to accept employment (e.g., Creative Vision Resources, 364 NLRB No. 91 (2016))
    • Finding “perfectly clear” successorship where predecessor employer (but not successor) had communicated to employees that they would receive comparable wages and benefits from successor (Nexeo Solutions, 364 NLRB No. 44 (2016))
  • Unilateral changes consistent with past practice
    • Finding unlawful unilateral changes after contract expiration where changes were similar to employer’s earlier practice (e.g., E.I. Dupont de Nemours, 364 NLRB No. 113 (2016), overruling Courier-Journal, 342 NLRB 1093, 342 NLRB 1148 (2004))
  • Total Security
    • Establishing duty to bargain before imposing discretionary discipline where parties have not executed initial collective bargaining agreement (364 NLRB No. 106 (2016))
  • Duty to provide witness statements to union
    • Finding that witness statements must be disclosed if that would be appropriate under the Detroit Edison balancing test (Piedmont Gardens, 362 NLRB No. 139 (2015), overruling Anheuser-Busch, 237 NLRB 982 (1984))
  • Dues check-off
    • Establishing that the dues check-off obligation survives expiration of the collective-bargaining agreement (Lincoln Lutheran of Racine, 362 NLRB No. 188 (2015))
  • Remedies
    • Search for work and interim employment expenses recoverable regardless of whether discriminatee had interim earnings (King Soopers, 364 NLRB No. 93 (2016))
    • Employer required to remit dues unlawfully withheld without being able to recoup them from employees (Alamo Rent-a-Car, 362 NLRB No. 135 (2015))
  • Fourth, new General Counsels have often identified novel legal theories that they want explored through mandatory submissions to Advice. I have not yet  identified any such initiatives, but I have decided that the following memos shall be rescinded:

Second, his list of General Counsel Memos that are now rescinded --

  • GC 17-01 (General Counsel’s Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context)
  • GC 16-03 (Seeking Board Reconsideration of the Levitz Framework) GC 15-04 (Report of the General Counsel Concerning Employer Rules) GC 13-02 (Inclusion of Front Pay in Board Settlements)
  • GC 12-01 (Guideline Memorandum Concerning Collyer Deferral)
  • GC 11-04 (Default Language)
  • OM 17-02 (Model Brief Regarding Intermittent and Partial Strikes) (Regions should submit cases involving intermittent strikes to Advice)

Third, his list of initiatives previously set out in Advice memoranda that are no longer in effect --

  • seeking to extend Purple Communications to other electronic systems (e.g., internet, phones, instant messaging) if employees use those regularly in the course of their work
  • seeking to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they select union representation
  • seeking to overturn Oil Capitol and put the burden of proof on respondent to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period
  • arguing that an employer’s misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) (but Regions should submit to Advice any case where there is evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity)
  • seeking to overturn IBM and apply Weingarten in non-union settings