Notable Board Decisions

The Board, reversing the Administrative Law Judge, dismissed the complaint and deferred to the joint grievance panel's decision upholding the employee's discharge. In so doing, the Board overruled Babcock & Wilcox Construction Co., Inc., 361 NLRB (2014), and returned to the post-arbitral deferral standard set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955), and Olin Corp., 268 NLRB 573 (1984). Under the restored standard, the Board will defer to the arbitrator’s decision where (1) the arbitral proceedings appear to have been fair and regular, (2) all parties have agreed to be bound, (3) the arbitrator considered the unfair labor practice issue, and (4) the arbitrator’s decision is not clearly repugnant to the Act. In addition, the Board restored policies for pre-arbitral deferral established in United Technologies Corp., 268 NLRB 557 (1984), and for deferral to pre-arbitral settlement agreements set forth in Alpha Beta Co., 273 NLRB 1546 (1985).

The Board denied in part and granted in part the General Counsel’s Motion for Summary Judgment. A full Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, concurring in part and dissenting in part) denied summary judgment with respect to the Respondent’s failure to provide information about certain matters, including customer complaints about unit employees, finding that it was not presumptively relevant to the Union’s performance of its duties as an exclusive bargaining representative of unit employees and the Union had not shown its relevance. The Board granted summary judgment with respect to the presumptively relevant information requested by the Union. The Board found that the Respondent violated Section 8(a)(5) by failing and refusing to furnish the Union with such information. The majority, however, found that the Respondent articulated legitimate confidentiality interests with respect to confidential policies related to the security and integrity of its gaming machines, and precautions taken to combat illegal gaming activity and money laundering. The majority found that the Respondent violated Section 8(a)(5) by refusing to furnish this assertedly confidential information without seeking accommodative bargaining. Finally, the majority adopted a modified remedial approach for a certification-testing employer facing the union’s request for relevant, but confidential information. Previously, an employer forfeited its confidentiality defense unless it responded to the union’s information request with an offer to engage in accommodative bargaining over the disputed information. But at the same time, the Board and courts held that, if it engaged in accommodative bargaining, the employer waived its right to challenge the union’s certification in the court of appeals. The majority explained that the Board had never addressed why a certification-testing employer is required to waive either its challenge to the union’s certification or its confidentiality defense to providing requested information and that it did not effectuate any of the policies of the Act. Accordingly, in order to eliminate the Hobson’s choice under the prior law, the majority held that, if the Board finds that an employer articulates a legitimate, specific confidentiality interest in particular requested information, it will order the employer to engage in accommodative bargaining, rather than the immediate production of the requested information. Under this modified approach, the majority ordered the Respondent to engage in accommodative bargaining with the Union concerning its assertedly confidential information. Member McFerran dissented in two respects. First, she found that complaints about bargaining unit employees are presumptively relevant because they implicate employees’ job performance and go to the core of the employer-employee relationship, including discipline or discharge as a result of a complaint, and that employers respond to complaints in ways that directly affect employees’ employment. Second, she found that the Respondent waived its confidentiality argument by failing to raise it in its answer to the complaint and by failing to claim confidentiality at the time of the Union’s request as required under Board law. Even if the Respondent had preserved a confidentiality claim, she found that allowing an employer that is unlawfully refusing to bargain in order to test the certification to simultaneously preserve a confidentiality defense to requests for relevant information is “contrary to the Act’s policy of promoting collective bargaining and improperly favors wrongdoers.”

On a stipulated record, the full Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) concluded that the Respondent did not violate Section 8(a)(1) by maintaining two written rules requiring employees to maintain confidentiality and prohibiting unauthorized discussions regarding workplace investigations into illegal or unethical conduct. The majority overruled the Board’s former approach to investigative confidentiality rules as set forth in Banner Estrella Medical Center, 362 NLRB 1108 (2015), requiring an employer to make a case-by-case determination of whether confidentiality can be required in a specific investigation. Instead, the Board applied the test for facially neutral workplace rules established in The Boeing Co., 365 NLRB No. 154 (2017), and found such confidentiality rules generally to be lawful. The majority found that the Banner Estrella approach improperly placed the burden on the employer to determine whether its interests in preserving the integrity of an investigation outweighed presumptive employee Section 7 rights, contrary to both Supreme Court and Board precedent. Further, the Board’s prior test failed to consider the importance of the employer’s confidentiality assurances to both employers and employees during an ongoing investigation and was inconsistent with other federal guidance, including from the EEOC regulations requiring an employer to provide confidentiality assurances throughout sensitive discrimination investigations. However, noting that the Respondent did not limit the application of the rules to the duration of the investigation in this case, the majority remanded this case for further consideration. Dissenting, Member McFerran disagreed with the majority’s decision to overrule Banner Estrella without notice or public participation. Member McFerran criticized the majority’s abandonment of Banner Estrella’s case-by-case balancing of employee rights and employer interests in favor of a categorical determination that all employer-imposed rules requiring confidentiality for the duration of an investigation are lawful to maintain, and argued that, under Banner Estrella, these rules’ blanket prohibition on employees’ discussion of workplace investigations that implicate their Section 7 rights is clearly overbroad. In Member McFerran’s view, under the majority’s new approach, workers who are the targets of workplace investigations—whether fairly or unfairly—will be prevented from seeking the help of their co-workers, their union, or the Board, despite the “mutual aid or protection” guarantee of Section 7.

A full Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran dissenting in part) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a rule prohibiting employees from using the Respondent’s information-technology (IT) resources to send “non-business information.” The majority overruled Purple Communications, Inc., 361 NLRB 1050 (2014), and determined that employers generally have the right to impose nondiscriminatory restrictions (including outright bans) on the use of employer-owned IT systems for nonwork purposes, essentially reinstating the Board’s decision in Register Guard, 351 NLRB 1110 (2007). The majority explained that Purple Communications was inconsistent with Board and court precedent holding non-discriminatory restrictions on the use of employer equipment to be lawful. It further explained that the Supreme Court’s decision in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945)—which held that workplace restrictions on Section 7 communications that applied during nonwork time were presumptively unlawful—stands for the twin propositions that employees must have “adequate avenues of communication” in order to meaningfully exercise their Section 7 rights and that employer property rights must yield to employees’ Section 7 rights when necessary to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.” Thus, the majority’s new standard respects both employees’ Section 7 right to engage in union or other protected concerted communications during the workday and employers’ property rights in their equipment by allowing employers to generally prohibit non-work use of their equipment, while creating an exception where the use of such equipment is the only reasonable means for employees to communicate with one another during the workday. Additionally, the majority: (1) adopted, for different reasons than the judge, her conclusion that several additional restrictions on the use of the Respondent’s IT resources were lawful to maintain; and (2) remanded a computer confidentiality rule and several rules found unlawful in an earlier Board decision in this case, 362 NLRB 1690 (2015), which were remanded, on the Board’s request, by the Ninth Circuit, for reconsideration in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (2017). Dissenting in part, Member McFerran would have applied Purple Communications to find the Respondent’s prohibitions on using its IT resources to send non-business information or “solicit for personal gain or advancement of personal views” unlawful because the Respondent did not argue or present any “special circumstances” to justify its total ban on the nonwork use of email to maintain production or discipline.

A full-Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) overruled Lincoln Lutheran of Racine, 362 NLRB 1655 (2015), and restored the longstanding rule established in Bethlehem Steel, 136 NLRB 1500 (1962). Under Bethlehem Steel, employers’ statutory obligation to check off union dues ends when its collective-bargaining agreement containing a checkoff provision expires. In Lincoln Lutheran, the Board had held that an employer’s statutory obligation to check off union dues would continue to be enforceable after the collective-bargaining agreement’s expiration, based on Section 8(a)(5), which prohibits most unilateral changes. The majority found that dues-checkoff provisions belong in the limited category of mandatory-bargaining subjects that are exclusively created by the contract and are enforceable through Section 8(a)(5) only for the duration of the contractual obligation created by the parties. In so finding, the majority relied on the Members Schaumber-Hayes concurring opinion in Hacienda Hotel Inc. Gaming Corp., 355 NLRB 742 (2010), enf. denied Local Joint Executive Board of Las Vegas v. NLRB, 657 F.3d 865 (9th Cir. 2011). Further, the majority agreed with the Lincoln Lutheran dissent that dues checkoff is not analogous to other voluntary deduction arrangements and that the Lincoln Lutheran majority had wrongly relied on after-the-fact recharacterizations of Board precedent. Thus, the majority found that there is no independent statutory obligation to check off and remit employees’ union dues after the expiration of the collective-bargaining agreement containing the checkoff provision, just as no such statutory obligation exists before parties enter into such an agreement. Contrary to the dissent, the majority concluded that Lincoln Lutheran’s holding undermines and conflicts with statutory bargaining principles, while the majority’s result in this case is more consistent with the collective-bargaining process and the settled expectations of parties negotiating in good faith. The majority explained that this holding and rationale apply even where the contract does not contain a union-security provision, and that its conclusion is not precluded by the Ninth Circuit’s 2011 decision in Local Joint Executive Board, above. Further, the majority applied its holding retroactively, found that the Employer in this case had no obligation to continue dues checkoff after the contract’s expiration, and dismissed the complaint. The Administrative Law Judge had dismissed the complaint on a different basis. Dissenting, Member McFerran argued that the majority’s belated assertion of a new “contract creation” rationale, without notice or public participation, continues a string of decisions in which the majority has permitted employers to dispense with bargaining and make unilateral changes, contrary to the Act’s central goal of encouraging the practice and procedure of collective bargaining. Member McFerran faulted the majority for offering no tenable reason for discarding the “comprehensive and carefully-analyzed” Lincoln Lutheran decision: the majority, she said, relies on an artificial and arbitrary distinction between dues-checkoff provisions and other terms, such as wage rates, that are embodied in a contract and must be continued after contract expiration. She observed that the majority’s ruling contradicts Board and court holdings that unilateral action is not a lawful economic weapon, and it rests on the “remarkable claim” that a rule permitting an employer to act without bargaining is better for the statutory bargaining process than a rule requiring the employer to bargain. Lastly, Member McFerran argued that the majority’s retroactive application of its new rule is manifestly unjust to parties that reached agreements with the expectation that their dues-checkoff provisions would continue after contract expiration.

The full Board adopted the Administrative Law Judge’s conclusion that the Respondent’s maintenance of its dress codes requiring logos to be “small” and “non-distracting” violated Section 8(a)(1) as it applied to areas away from the selling floor; however, a Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the judge’s conclusion that the Respondent’s maintenance of its dress codes was unlawful as it applied to the selling floor. In doing so, the majority applied its test for examining facially neutral employer policies set forth in The Boeing Company, 365 NLRB No. 154 (2017). The majority explained that limitations on the display of union insignia short of outright prohibitions will vary in the extent to which they serve legitimate employer interests and the degree to which they interfere with Section 7 rights; thus, they will “warrant individualized scrutiny in each case” as Boeing Category 2 rules. Applying Boeing to the maintenance of the rules on the selling floor, the majority found that the policies—when reasonably interpreted—would potentially interfere with employees’ Section 7 right to display some union insignia; nonetheless, the adverse effect is relatively minor and outweighed by the Respondent’s legitimate justifications for maintaining the policies—to enhance the customer shopping experience and protect its merchandise from theft or vandalism. Dissenting and citing Republic Aviation, 324 U.S. 793 (1945), Member McFerran argued that the majority impermissibly applied The Boeing Company instead of the Board’s longstanding “special circumstances” test. By applying Boeing, the dissent argued that the majority upends the Board’s traditional framework by abandoning the presumption that any limitation on the display of union insignia is presumptively unlawful, and, instead, requiring the General Counsel to first prove that Section 7 rights have been adversely affected. The dissent further argued that, as a result, the majority effectively treats the display of union insignia more as a privilege to be granted by the employer on the terms it chooses, rather than as an essential Section 7 right that—pursuant to federal labor law—requires accommodation. Noting that the judge reached the only permissible conclusion on the facts presented, the dissent would have affirmed the judge’s conclusions that the Respondent’s maintenance of its policies violated Section 8(a)(1).

The full Board adopted the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement (MAA) that restricts employees’ access to the Board processes by prohibiting them from receiving backpay or other monetary compensation through Board processes. The MAA expressly allows for the filing of an administrative charge with the Board but requires employees to give up their right to any monetary remedies that may ensue and instead arbitrate monetary relief. Applying The Boeing Company, 365 NLRB No. 154 (2017), the Board found that the MAA is a “Category 3” rule that is unlawful to maintain because it limits access to the Board’s full processes and because it seeks to limit the Board’s exercise of its remedial authority to prevent unfair labor practices. In agreement with the judge, Member McFerran also found that the MAA’s limitation on full Board remedies would reasonably inhibit employees from filing charges at all.

On remand from the Eleventh Circuit Court, the Board (Chairman Ring and Members McFerran and Kaplan; Member Emanuel, dissenting in part and concurring in part) found that the Respondent violated Section 8(a)(1) by maintaining a mandatory arbitration agreement that unlawfully restricts access to the Board and its processes, and by discharging an employee for failing to sign it. A full Board majority (Chairman Ring and Members McFerran and Kaplan; Member Emanuel, dissenting in part), applying the standard announced in The Boeing Co., 365 NLRB No. 154 (2017), concluded that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement covering “[a]ny controversy or claim arising out of or relating to Employee’s employment, Employee’s separation from employment, and this Agreement…except where specifically prohibited by law….” Following its recent decision in Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board concluded that the Respondent’s mandatory arbitration agreement, “when reasonably interpreted, plainly makes arbitration the exclusive forum for the resolution of all claims, including statutory claims under the Act…[and that] a reasonable employee would understand that agreement to restrict access to the Board.” Finally, the Board concluded that the vague exclusion clause – “except where specifically prohibited by law” – contained in the agreement was insufficient to put employees on notice that claims arising under the Act would be excluded from the agreement’s coverage. As the Board explained, “Vague, generalized language like that in the…[arbitration agreement] purporting to exclude claims for which arbitration is ‘prohibited by law’ would undoubtedly require employees to meticulously determine the state of the law themselves.” Dissenting in relevant part, Member Emanuel would have found the exclusion clause sufficient to put employees on notice that claims under the Act were excluded from the arbitration agreement’s coverage. However, the full Board unanimously (Member Emanuel, concurring) found that the Respondent violated Section 8(a)(1) by discharging the employee for failing to sign the mandatory arbitration agreement.

On remand from the Eighth Circuit Court, the full Board unanimously reaffirmed the Board’s conclusion in the underlying decision that the Respondent violated Section 8(a)(3) and (1) by discharging an employee for engaging in union activity. The Court had concluded that, in the underlying decision, the Board had not held the General Counsel to the proper burden under Wright Line, 251 NLRB 1083 (1980), and instructed the Board to apply Wright Line consistent with its opinion on remand. Consistent with the Court’s opinion, the Board found that the General Counsel established a connection or nexus between the Respondent’s animus toward the employee’s union activity and its decision to discharge him. The Board also reaffirmed the finding in the underlying decision that the Respondent failed to establish that it would have discharged the employee even absent his union activity. A full Board majority (Chairman Ring and Members Kaplan and Emanuel) clarified the General Counsel’s burden under Wright Line. The Board explained that Wright Line is inherently a causation test and that the General Counsel therefore does not invariably sustain his burden by producing—in addition to evidence of the employee’s protected activity and the employer’s knowledge thereof—any evidence of the employer’s animus or hostility toward union or other protected activity. Instead, the General Counsel must establish that a causal relationship exists between the employee’s protected activity and the employer’s adverse action against the employee. The majority overruled Mesker Door, 357 NLRB 591 (2011), Libertyville Toyota, 360 NLRB 1298 (2014), and their progeny to the extent that they suggest that the General Counsel necessarily satisfies his burden of proof under Wright Line by simply producing any evidence of the employer’s animus or hostility toward union or other protected activity. The majority emphasized that its clarification does not mark a radical shift in the Board’s interpretation or application of Wright Line, as it did not take issue with the Board’s standard three-element formulation of the General Counsel’s burden or seek to add a fourth “nexus” element. Member McFerran, concurring in the result, disagreed with the majority that it was necessary to clarify the General Counsel’s burden under Wright Line. She agreed with the majority that the principles described above, in particular that the General Counsel must establish a causal relationship between the employee’s protected activity and the employer’s adverse action against the employee, are embedded in the Wright Line framework and in the Board’s precedent applying it. However, unlike the majority, she believes that the Board’s decisions in Mesker Door and Libertyville Toyota are consistent with those principles.

The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining two rules in its employee manual—the “Confidentiality & Non-Disclosure” rule and the “Media Contact” rule. In doing so, the majority applied its decision in Boeing Co., 365 NLRB No. 154 (2017), and provided points of clarification. First, the majority noted that it is the General Counsel’s initial burden to prove that a facially neutral rule would in context be interpreted by a reasonable employee to potentially interfere with the exercise of Section 7 rights. If that burden is not met, there is no need for the Board to take the next step in Boeing of addressing the interests justifying the rule. Second, the majority noted that if the General Counsel meets that initial burden, then the Boeing analysis will require a balancing of the potential interference against the legitimate justifications associated with the rule. In many instances, it will be possible to strike a general balance of competing employee rights and employer interests for certain types of rules, eliminating the need for further case-by-case balancing. The Board will find those rules to be lawful and fit within Boeing Category 1(b). Third, the majority noted that in some cases, it will not be possible to draw broad conclusions about the legality of particular rules because the context and competing rights and interests are specific to that rule and employer. The Board will place those rules in Boeing Category 2. Turning to the rules at issue in the case, the majority reversed the judge and found that the rules, as interpreted by an objectively reasonable employee, do not prohibit or interfere with the exercise of Section 7 rights. The majority found that the disputed portion of the Confidentiality Rule only applies to the Respondent’s own nonpublic, proprietary records and does not prohibit employees from disclosing the names of the Respondent’s customers and vendors. The majority also found that the Media Contact rule provides only that when employees are approached by the news media for comment, they may not comment on the Respondent’s behalf. Dissenting, Member McFerran argued that the majority’s clarification of Boeing categorically removes broad subject areas of workplace regulations from scrutiny and erodes the Board’s ability to protect Section 7 rights. The dissent argued that the majority’s characterization of the “reasonable employee” is hopelessly unclear and cannot be reconciled with Supreme Court precedent. The dissent also argued that the majority’s analysis is too strict to adequately protect Section 7 rights. The dissent would find that both the Confidentiality rule and the Media Contact rule are impermissibly overbroad, have a reasonable tendency to chill employees from engaging in protected concerted activity, and are not narrowly tailored.

On remand from the Ninth Circuit Court, the Board found that the Respondent violated Section 8(a)(1) by maintaining its mandatory arbitration agreement because, when reasonably interpreted, it interferes with employees’ access to the Board and its processes. Applying The Boeing Company, 365 NLRB No. 154 (2017) and Prime Healthcare Paradise Valley, LLC, 368 NLRB No. 10 (2019), the Board found that the agreement plainly makes arbitration the exclusive forum for the resolution of all claims except for workers compensation or unemployment compensation benefits, including claims arising under the Act. Finding that the agreement cannot be legitimately justified, the Board placed it in Boeing Category 3.

The Board unanimously found that the Respondent’s mandatory arbitration agreements do not violate Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017), because, when reasonably interpreted, they do not potentially interfere with employees’ right to access the Board and its processes. The Board concluded that, although the agreements provide that “[a]ny claim, controversy or dispute” shall be resolved through binding arbitration, they contained effective “savings clause” language by also providing that nothing in them is to be construed to prohibit the filing of any charge or participating in any proceeding conducted by an administrative agency, including the Board. The Board determined that the “savings clause” language in the agreements is unconditional and sufficiently prominent so that the agreements could not be reasonably interpreted to prohibit employees from filing Board charges or participating in Board proceedings in any manner, whether acting individually or in concert with coworkers. In addition, the Board found that the agreements in this case are factually distinguishable from those in which the pre-Boeing Board found “savings clause” language, in context, to be confusing, ambiguous, or otherwise insufficient, without passing on whether those cases were correctly decided.

On a stipulated record, the full Board considered whether the Respondent violated Section 8(a)(5) and (1) of the Act by implementing five work policies without first bargaining with the Union, including the Respondent’s argument that this unilateral action was permitted by the parties’ collective-bargaining agreement. In doing so, the majority (Chairman Ring and Members Kaplan and Emanuel) abandoned the “clear and unmistakable waiver” standard, which the Board had applied when considering arguments like the Respondent’s. Under the clear and unmistakable standard, an employer’s unilateral action violated the Act unless a contractual provision, granting an employer the right to act unilaterally, unequivocally and specifically referred to the type of employer action at issue. See Provena St. Joseph Medical Center, 350 NLRB 808 (2007). In agreement with the D.C. Circuit, see NLRB v. U.S. Postal Service, 8 F.3d 832 (D.C. Cir. 1993), and other courts of appeals, the majority adopted the “contract coverage” standard. Under that standard, the Board will examine the plain language of the collective-bargaining agreement, applying ordinary principles of contact law, to determine whether action taken by an employer is within the compass or scope of contractual language granting the employer the right to act unilaterally. Accordingly, where contract language covers the act in question, the agreement will have authorized the employer to make the disputed change unilaterally, and the employer will not have violated Section 8(a)(5). If the contract coverage standard is not met, the Board will continue to apply its traditional waiver analysis to determine whether some combination of contractual language, bargaining history, and past practice establishes that the union waived its right to bargain regarding a challenged unilateral change. Among other reasons, the majority held that the contract coverage standard is more consistent with the purposes of the Act than is the waiver standard because contract coverage: (i) encourages parties to foresee and resolve potential labor-management issues through comprehensive collective bargaining; (ii) will end the Board’s practice of selectively applying exacting scrutiny to contractual provisions that vest in employers the right to act unilaterally; (iii) will end the Board’s practice of sitting in judgment on the substantive terms of a collective-bargaining agreement, a practice contrary to Supreme Court law; (iv) ensures the Board’s interpretation of contractual language remains within its limited authority to do so; and (v) discourages forum shopping by applying the same standard that arbitrators apply, thus channeling unilateral-change disputes into grievance arbitration, as Congress intended. The majority noted that its decision resolves a conflict with several courts of appeals, in particular, the D.C. Circuit, where the waiver standard has become indefensible and unenforceable. The majority explained that while the Supreme Court has stated that it does not disapprove of the waiver standard, the Court did so in deference to the Board’s expertise and experience. The Board’s subsequent experience and subsequent court decisions, the majority argued, now supports adopting the contract coverage standard. Applying the contract coverage standard retroactively, the majority found that each of the Respondent’s work policies (concerning the addition of light duty work assignments and the setting of disciplinary standards for safety, schedule adherence, security sweeps/breaches, and driving) falls within the compass or scope of language in the collective-bargaining agreement that granted the Respondent the right to assign employees, to discipline employees, and to issue reasonable rules and policies related to employee discipline. Accordingly, the majority found that the Respondent did not violate the Act by unilaterally implementing these work policies. Dissenting, Member McFerran disagreed with the majority’s decision to abandon the clear and unmistakable waiver standard. Member McFerran faulted the majority for overruling the Board’s many-decades-long adherence to the waiver standard without notice or public participation. She argued that the waiver standard is consistent with the Act because it favors collective bargaining concerning changes in working conditions that might precipitate labor disputes while the contract coverage standard will destabilize labor relations by making it easier for employers to unilaterally change employees’ terms and conditions of employment. She further argued that the contract coverage standard cannot be squared with Supreme Court law endorsing the Board’s waiver standard, faulted the majority for deferring to the current view of the D.C. Circuit in an area where it is the court that should have deferred to the Board, and noted that multiple courts of appeals have applied the waiver standard. Member McFerran argued that the contract coverage standard will diminish the likelihood of parties reaching collective-bargaining agreements because employers will seek broadly-worded provisions granting them the right to unilaterally act and unions will decide that they are better off resting entirely on the statutory right to bargain created by the Act. She added that this outcome will be amplified by the Board’s decision in Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), which permits employers to continue a past practice of making unilateral changes authorized by contractual provisions, even after the collective-bargaining agreement expires. Finally, Member McFerran disagreed with the majority’s retroactive application of the contract coverage standard because, among other reasons, it would be unjust to unions that previously thought they were assured the right to bargain over matters not explicitly waived. Applying the waiver standard, contrary to her colleagues, Member McFerran would find that the Respondent violated the Act by unilaterally implementing its policies concerning safety, schedule adherence, and security sweeps/breaches. Member McFerran agreed with her colleagues the Respondent did not violate the Act by implementing its light duty work assignments and driving policies. The full Board also considered whether the Respondent, within the meaning of Section 8(d) of the Act, violated Section 8(a)(5) and (1) by implementing five additional work policies on the basis that those policies modified the parties’ collective-bargaining agreement without the Union’s consent. Applying the “sound arguable basis” standard, see Bath Iron Works Corp., 345 NLRB 499 (2005), the Board found that the Respondent unlawfully implemented bereavement pay, licensing reimbursement, and required extra assignments policies. The Board found that the Respondent did not violate the Act by implementing operator log-in and customer service policies.

The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) concluded that the petitioned-for unit limited to only two job classifications within an aircraft production line was inappropriate for collective bargaining. In reaching this conclusion, the Board clarified that its recent return to the traditional community-of-interest standard in PCC Structurals, Inc., 365 NLRB No. 160 (2017), contemplated a three-step analysis for determining whether the petitioned-for unit is appropriate. The Board will (1) evaluate whether the members of the petitioned-for unit share a community of interest with each other, (2) ascertain whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members, and (3) consider guidelines the Board has established for appropriate unit configurations in specific industries. Applying this three-step analysis to the facts before it, the Board reasoned that the employees in the petitioned-for unit both did not share an internal community of interest and did not have sufficiently distinct interests from those of excluded employees, and it found no guidelines specific to the Employer’s industry. Member McFerran, dissenting, would have found the petitioned-for unit appropriate. She disagreed with the second step of her colleague’s legal framework and would have found the facts warranted concluding that the members of the bargaining unit did share an internal community of interest and had interests sufficiently distinct from excluded employees.

A Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) overruled Sandusky Mall Co., 329 NLRB 618 (1999), enf. denied in relevant part 242 F.3d 682 (6th Cir. 2001), and similar cases based on its view that these cases improperly stretched the NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105 (1956) discrimination exception well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the Act. The majority observed that Sandusky Mall and its progeny have been roundly rejected by the federal courts of appeals, and that courts have consistently limited the Babcock discrimination exception to situations where an employer ejects union agents seeking to engage in activities similar in nature to activities the employer permitted other nonemployees to engage in on its property. The majority further stated that in a pre-Sandusky Mall case, Jean Country, 291 NLRB 11, 12 fn. 3 (1988), which was never relevantly overruled, the Board itself limited Babcock’s discrimination exception the same way. The majority also pointed to other factors that, in its view, warranted reconsideration of the Board’s approach to the discrimination exception, as embodied in Sandusky Mall and related cases. The majority stated that under the standard it was adopting, to establish that a denial of access to nonemployee union agents was unlawful under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to other nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage. The majority further stated that consistent with this standard, an employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities. Also, the majority observed that an employer may ban nonemployee access for union organization activities if it also bans comparable organizational activities by groups other than unions. The majority stated that its approach is consistent with the policies of the Act, while at the same time giving due recognition to an employer’s property right to exclude nonemployees. The majority, applying the above-described standard to the allegation before it, reversed the Administrative Law Judge’s finding of a violation (which was based on her application of Sandusky Mall and related cases) and dismissed the complaint. The majority explained that the General Counsel did not show that the Respondent has ever permitted any nonemployees, whether affiliated with a union or not, to engage in protest activities on its premises comparable to the boycott solicitation at issue in this case. Dissenting, Member McFerran argued that the judge properly found a violation based on precedent that spanned decades. She argued that the majority, repeating errors the majority made in UPMC, 368 NLRB No. 2 (2019), incorrectly reached out to decide an issue that was not required to resolve the case. In this regard, she asserted that the judge made a motive-based determination that easily supports finding a violation here, making it unnecessary to reach the disparate-treatment issue. She also argued that the majority again reversed precedent on a major labor-law issue without providing notice to the public and inviting briefing. Regarding the merits of the majority’s decision, she asserted that the majority’s decision to reverse precedent was wrong and impermissible under Supreme Court law. She asserted that the majority’s approach contradicted the understanding of discrimination reflected in NLRB v. Stowe Spinning Co., 336 U.S. 226 (1949) and in more than 70-years’ worth of Board decisions; misconstrued the meaning of discrimination within the framework of Section 8(a)(1); and radically narrowed the scope of the discrimination exception. Member McFerran additionally argued that although the federal courts of appeals are divided about the Board’s interpretation of the Babcock discrimination exception, a majority of the Circuits that have addressed the issue have approved the Board’s approach. In Member McFerran’s view, the majority’s decision to change the Board’s approach is flawed because it permits employers to treat union representatives as distinct based on their supposed “boycott and protest activities” as opposed to their actual conduct: solicitation of customers. She stated that the majority’s approach, which cannot be squared with Supreme Court precedent or statutory policy, creates a license for an employer to permit almost any third-party activity on its property but union solicitation and distribution

The full Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent failed to establish that its drivers are independent contractors. In adopting the judge’s conclusion, the Board applied SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), which issued subsequent to the judge’s decision. Additionally, the Board unanimously adopted the judge’s conclusion that the Respondent violated Section 8(a)(1) by discharging an individual driver for raising protected group complaints about the Respondent’s treatment of the drivers as employees instead of independent contractors. A full Board majority consisting of Chairman Ring and Members Kaplan and Emanuel reversed the judge and dismissed the allegation that the Respondent independently violated Section 8(a)(1) by misclassifying its drivers as independent contractors. The majority held that an employer’s misclassification of its employees as independent contractors, standing alone, does not violate the Act. The majority explained that an employer’s communication to its workers of its legal opinion that they are independent contractors does not, in and of itself, inherently threaten that those employees are subject to termination or other adverse action if they exercise their Section 7 rights or that it would be futile for them to engage in union or other protected activities. The majority found that communication of that legal opinion is therefore privileged by Section 8(c) even if the employer is ultimately mistaken. Additionally, the majority rejected the argument that even if a misclassification, standing alone, does not violate the Act, the Respondent’s misclassification became coercive when the Respondent unlawfully discharged a misclassified driver for engaging in protected activity. The majority acknowledged that the unlawful discharge may chill the other drivers from engaging in protected activity, but did not believe that the creation of a new misclassification violation was necessary because the Board has long used its notice-posting remedy to dispel the chilling effect of unfair labor practices. The majority did not accept that in any circumstances, an employer’s misclassification itself will become unlawful because of other related conduct by the employer, stating that if the General Counsel determines that related conduct is unlawful, then he should allege it as a violation of the Act, and the Board will remedy it accordingly if it agrees. Finally, the majority declined to order the Respondent to reclassify its drivers as part of the remedy for its unlawful discharge. The majority noted that the extraordinary remedy of reclassification is not routinely ordered in cases involving misclassified employees and found, once again, that the Board’s traditional notice-posting remedy would be sufficient to dissipate fully the coercive effects of the unlawful discharge. Dissenting in part, Member McFerran would have adopted the judge’s conclusion that the Respondent independently violated Section 8(a)(1) by misclassifying its drivers as independent contractors. She argued that it was unnecessary for the Board to decide whether an employer’s misclassification of its employees as independent contractors, standing alone, violated the Act for two reasons. First, by discharging a misclassified driver for engaging in protected activity, the Respondent applied the misclassification to interfere with Section 7 activity, rendering the misclassification itself unlawful. Second, to fully remedy the unlawful discharge, the Board needed to order the Respondent to reclassify all of its misclassified drivers. If it had been necessary to decide the stand-alone misclassification issue, Member McFerran would have held that a misclassification, standing alone, violates Section 8(a)(1) because when an employer communicates to its employees that it has classified them as independent contractors, the employees would reasonably believe that exercising their Section 7 rights would be futile or would lead to adverse employer action.

A Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the ALJ’s conclusion that the Respondent violated Section 8(a)(1) by barring the off-duty employees of an onsite contractor from leafleting on its property. The majority overruled New York New York Hotel & Casino, 356 NLRB 907 (2011), and determined that contractor employees are not generally entitled to the same Section 7 access rights as the property owner’s own employees. The majority adopted a new standard holding that a property owner may exclude from its property off-duty employees of an onsite contractor seeking access to the property to engage in Section 7 activity unless (i) those employees work both regularly and exclusively on the property, and (ii) the property owner fails to show that they have one or more reasonable nontrespassory alternative means to communicate their message, which could include the use of adjacent public property, newspapers, radio, television, billboards, and social media. The majority relied on the principles articulated in the Supreme Court’s opinion in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992). The Court held that, when Section 7 rights conflict with a property owner’s property rights, an accommodation between the two “must be obtained with as little destruction of one as is consistent with the maintenance of the other” and that the “nature and strength” of the respective Section 7 rights must be balanced against the private property rights of the property owner. Most importantly to this case, the Court also labeled the distinction between the union activities of employees versus those of nonemployees as one “of substance.” The majority held that this distinction “of substance” necessitates that, although off-duty employees of an onsite contractor enjoy some Section 7 access rights, they are weaker than those of the property owner’s own employees and the extent to which their Section 7 rights permit infringing upon private property rights is inherently more restricted. Thus, the majority’s new standard properly accommodates the competing rights at issue: off-duty, onsite contractor employees may access a property owner’s property to engage in Section 7 activity where they have a sufficient connection to the property owner by working regularly and exclusively on the property, and the contractor employees do not have access to reasonable alternative nontrespassory means of communicating their message. Dissenting, Member McFerran would have applied New York New York Hotel & Casino and found that the Respondent violated Section 8(a)(1) by barring access to employees whose leafleting occurred in a public area and caused no interference with patrons. She asserted that the majority’s new access standard failed to heed the D.C. Circuit’s admonition to determine access rights by weighing the concrete interests of contractor employees, which include their core right to leaflet at their own workplace, and those of property owners, which are preserved via their ability to control the conduct of leafleting employees and prevent disruption. Instead, she argued, the majority wrongly applied a distinction between the rights of employees and nonemployees that arose in a context involving nonemployee organizers rather than employees asserting their own rights at their own workplace. She also pointed out that the majority’s new standard, despite the claim that contractor employees have some rights, places a property owner’s right to exclude above employees’ rights in all but the rarest circumstances, arbitrarily excluding employees who do not work exclusively on a property – even when the property is their primary workplace – and requiring most employees to have to resort to infeasible methods to communicate their message rather than leaflet at their workplace.

In this supplemental decision, the Board unanimously adopted the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(1) by discharging an employee for engaging in protected concerted activity and by maintaining a no-solicitation rule. The Board also adopted the judge’s dismissal of the complaint allegation that the Respondent violated Section 8(a)(1) by discharging a second employee, and the Board reversed the judge’s finding that the Respondent violated Section 8(a)(1) by discharging a third employee. The Board severed the allegations that the Respondent violated Section 8(a)(1) by maintaining additional rules and issued a Notice to Show Cause why those allegations should not be remanded to a judge for further consideration in light of Boeing Co., 365 NLRB No. 154 (2017). Considering two important issues of first impression following the Supreme Court’s decision Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), a full Board majority consisting of Chairman Ring and Members Kaplan and Emanuel held that the Act does not prohibit employers from promulgating mandatory arbitration agreements in response to employees opting in to collective action or from threatening employees with discharge for failing to sign mandatory arbitration agreements. Therefore, the majority reversed the judge’s findings that the Respondent violated Section 8(a)(1) by promulgating a revised arbitration agreement in response to employees opting in to a collective action and by its statements to employees who expressed concerns about the agreement. Dissenting, Member McFerran would have affirmed the judge’s conclusions that the Respondent violated Section 8(a)(1) by promulgating a revised arbitration agreement in response to employees’ protected concerted activity and by threatening employees with reprisals for raising concerns regarding the agreement.

A Board majority (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) adopted the Administrative Law Judge’s conclusion that the Respondent did not violate Section 8(a)(5) by withdrawing recognition and dismissed the complaint. Further, the majority modified the Board’s anticipatory withdrawal doctrine under Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), in two respects. First, the “reasonable period of time” prior to contract expiration within which recognition may be anticipatorily withdrawn is now defined as no more than 90 days before the parties’ contract expires. Second, once an employer announces that it is withdrawing recognition anticipatorily, the incumbent union may file, within 45 days from the date of that announcement, an election petition (and a rival union may intervene in that representation case based on a sufficient showing of interest). If such a petition is timely filed, the incumbent union’s (or rival union’s) representative status following contract expiration will be determined through a Board-conducted secret-ballot election. If no such petition is timely filed, the employer may rely on the disaffection evidence to affect withdrawal. That evidence—assuming it establishes actual loss of majority status—will be dispositive of the union’s lack of majority status at the time of actual withdrawal; and the withdrawal of recognition will be lawful assuming no other grounds exist to find it unlawful. Thus, the majority overruled Levitz Furniture, and its progeny, insofar as an incumbent union could previously defeat an employer’s withdrawal of recognition in an unfair labor practice proceeding with evidence that it reacquired majority status in the interim between anticipatory and actual withdrawal. The majority’s new framework resolves questions concerning representational preference without reliance on “dual signers” signatures. Under prior precedent, and the Board’s “last in time” rule, a union could show reacquired majority status, notwithstanding prior disaffection evidence showing that it had lost that status, upon reliance on “dual signers” signatures. Such employees sign both an anti-union petition and, subsequently, a union authorization card or pro-union counter-petition, and the Board relied on the later signed card to find that the union had reacquired majority status. Thus, an employee’s disaffection signature was automatically invalidated by his or her subsequent reauthorization signature. Parties sometimes sought to ascertain dual signers’ representational wishes by asking them, at unfair labor practice hearings, what their sentiments were on the date recognition was withdrawn. Here, the judge allowed such questions and relied on the testimony of four dual signers to find actual loss of majority status notwithstanding the Union’s documentary evidence to the contrary. The majority refused to endorse this practice and instead held that a Board-conducted secret ballot election was the preferred means for resolving this question concerning representation. In affirming the judge’s dismissal of the complaint, the majority did not consider dual signers’ testimony about their true sentiments concerning representation on the date recognition was withdrawn, or testimony concerning the sentiments of other employees who did not sign the disaffection petition. Dissenting, Member McFerran would find that the Respondent violated Section 8(a)(5) by withdrawing recognition where it failed to carry its Levitz burden to prove that, at the time it withdrew recognition, the Union had lost majority support, and would not have overruled the Board’s anticipatory withdrawal precedent. To the extent that she would consider modifying Levitz, she would prohibit employers from unilaterally withdrawing recognition and instead require them to seek Board elections whenever they are otherwise free to challenge the union’s majority status.

On remand from the D.C. Circuit Court, the Board found that the Respondent’s Mediation and Arbitration Agreement restricts access to the Board and its processes and violates Section 8(a)(1) under the analytical framework set forth in The Boeing Company, 365 NLRB No. 154 (2017). The Board held that agreements that restrict employees’ access to the Board and its processes violate Section 8(a)(1) and set forth a rationale for that holding based in the Act and Supreme Court precedent. The Board then applied the Boeing balancing standard to the Respondent’s Agreement and found the nature and extent of its interference with Section 7 rights to be profound and that no legitimate employer interests justified or could justify a restriction on Board charge filing. Thus, the Board placed provisions that make arbitration the exclusive forum for the resolution of all claims in Boeing Category 3. The Board also addressed and disposed of certain arguments advanced by the Respondent, including its contention that the case was mooted by its non-Board settlement with one of the charging parties and that an order requiring the Respondent to rescind the Agreement is “grossly overbroad.”