Briad Wenco, LLC d/b/a Wendy's Restaurant,
368 NLRB No. 72
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.
MV Transportation, Inc.,
368 NLRB No. 66
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 Boeing Company,
368 NLRB No. 67
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.
368 NLRB No. 64
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
Velox Express, Inc.,
368 NLRB No. 61
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.
Cordua Restaurants, Inc.,
368 NLRB No. 43
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.
PRIME HEALTHCARE PARADISE VALLEY, LLC,
368 NLRB No. 10
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.”
UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi,
368 NLRB No. 2
The Board unanimously adopted the Administrative Law Judge’s conclusion that the Respondent, UPMC, violated Section 8(a)(1) by requiring employees who were meeting with Union organizers in the public cafeteria to produce their identification. The Board also unanimously adopted the judge’s conclusion that the Respondent did not engage in unlawful surveillance of the employees who were meeting with the organizers in the cafeteria.
Regarding the issue of union access to the cafeteria, a Board majority (Chairman Ring and Members Kaplan and Emanuel) overruled Ameron Automotive Centers, 265 NLRB 511 (1982), Montgomery Ward & Co., Inc., 256 NLRB 800 (1981), enfd. 692 F.2d 1115 (7th Cir. 1982), and their progeny to the extent those cases held that nonemployee union organizers could not be denied access to cafeterias that are open to the public if the organizers used the facility in a manner consistent with its intended use and are not disruptive. Instead, the majority found that, absent discrimination, an employer does not have a duty to permit the use of its public cafeteria by nonemployees for promotional or organizational activity. Applying the new standard, the majority found that UPMC did not discriminate by removing from the cafeteria the Union organizers, who were engaged in blatant promotional activity, because the evidence showed that UPMC had previously prohibited nonemployee third party organizations from soliciting and distributing in its cafeteria. Thus, the majority found that the Employer did not violate the Act by requiring the organizers to leave the cafeteria.
Dissenting, Member McFerran argued that the Board threw its judicially-approved longstanding precedent against discrimination into doubt by permitting the Employer to expel union representatives from a hospital cafeteria that is open to the public based entirely on their union affiliation. Member McFerran argued that such action is discrimination in its clearest form. She also argued that the Board’s holding cannot be reconciled with the understanding of discrimination reflected by Supreme Court precedent. Finally, Member McFerran argued that, because the Employer did not apply a no-solicitation/no-distribution policy in expelling the union organizers from the cafeteria, the Board erred by using this case to overturn Montgomery Ward, above.
Ridgewood Health Care Center and Ridgewood Health Services, Inc., a single employer,
367 NLRB No. 110
The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondents: (1) violated Section 8(a)(3) and (1) by discriminatorily refusing to hire four employee applicants in order to suppress the number of former employees of their predecessor below a majority of those hired; (2) were therefore a legal successor to the predecessor employer with a bargaining obligation to the incumbent Union; and, accordingly, (3) violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union. The Board found it unnecessary to reach the judge’s alternative rationale that the Respondents were a “perfectly clear” successor based on promises that they would hire 99.9 percent of the predecessor’s employees without clearly and concurrently announcing new terms and conditions of employment. Similarly, the Board found it unnecessary to reach the judge’s third rationale for finding successorship—that the 19 employees hired into the newly-created job classification of helping hands should not be included in the unit for majority status purposes.
However, a Board majority (Chairman Ring and Members Kaplan and Emanuel) concluded that no Love’s Barbeque remedy was warranted, i.e., the Respondents did not violate Section 8(a)(5) and (1) by setting initial terms and conditions of employment upon assuming the predecessor’s operations notwithstanding the discriminatory hiring violations. The majority overruled precedent that had extended the Love’s Barbeque remedy beyond its historical application to include situations in which, absent hiring discrimination, an employer would have planned to retain a sufficient number of predecessor employees to make it evident that an incumbent union’s majority status would continue. The majority held that the Love’s Barbeque remedy applies exclusively to situations in which an ordinary successor employer’s hiring discrimination created such uncertainty as to make it impossible to determine whether the employer would have hired all or substantially all of the predecessor employees absent that discrimination. Dissenting, Member McFerran would have continued the Board’s application of the Love’s Barbeque remedy to situations in which a successor employer’s workforce would be composed of a majority of represented predecessor employees absent the successor’s hiring discrimination against predecessor employees.
United Nurses & Allied Professionals (Kent Hospital),
367 NLRB No. 94
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) found that the Union violated Section 8(b)(1)(A) by failing to provide nonmember objectors with an audit verification letter in support of the Union’s claim of expenses chargeable to a Beck objector. The Board also found that the Union violated Section 8(b)(1)(A) by charging nonmember objectors for any lobbying expenses. Member McFerran, dissenting, agreed with requiring unions to provide verification that the financial information has been audited, but she disagreed with retroactively applying the new rule to this case. In addition, Member McFerran would find some lobbying expenses chargeable on an expenditure-by-expenditure basis when germane to collective bargaining, contract administration, or grievance adjustment.
367 NLRB No. 75
The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) affirmed the Acting Regional Director’s finding that SuperShuttle’s franchisees, who operate shared-ride vans for SuperShuttle, are excluded from the Act’s coverage as independent contractors and accordingly dismissed the representation petition at issue. In doing so, the majority overruled FedEx Home Delivery, 361 NLRB 610 (2014), to the extent that it impermissibly diminished the significance of entrepreneurial opportunity in the Board’s independent-contractor analysis and revived an “economic dependency” standard that Congress explicitly rejected with the Taft-Hartley amendments of 1947. The majority returned to the common-law agency test, as required by the United States Supreme Court. See NLRB v. United Insurance Co. of America, 390 U.S. 254 (1968).
Applying the common-law test, the majority found that the franchisees’ ownership of the principal instrumentality of their work, the method of their compensation, and their significant control over their daily work schedules and working conditions provide the franchisees with significant entrepreneurial opportunity. The majority further found that because those factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, outweigh the factors supporting employee status, the franchisees are independent contractors.
Dissenting, Member McFerran disagreed with the majority’s decision to overrule FedEx, supra, 361 NLRB 610, and asserted that the FedEx Board did no more than permissibly refine the way that the Board would apply the common-law agency test, as the Board may consider factors beyond the non-exhaustive list of common-law factors. Further, Member McFerran argued that the majority’s treatment of entrepreneurial opportunity as a “sort of super-factor” is contrary to the common-law agency test and the Supreme Court’s decision in United Insurance because if the common-law agency test has a core concept, it is not entrepreneurial opportunity but rather control. Additionally, she argued that even under the Board’s pre-FedEx precedent, she would find that SuperShuttle failed to establish that the franchisees are independent contractors.
Alstate Maintenance LLC,
367 NLRB No. 68
The Board (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)(1) by discharging an employee for engaging in alleged protected concerted activity where an airport skycap remarked about previously not receiving a tip for a similar baggage-handling job, and dismissed the complaint in its entirety. In dismissing the complaint, the majority reversed WorldMark by Wyndham, 356 NLRB 765 (2011), finding that WorldMark had deviated from longstanding precedent on protected concerted activity by blurring the distinction between protected group action and unprotected individual action. The Board further held that even if the activity was concerted, it was not protected as it was not aimed at improving a term or condition of employment within the Respondent’s control. Dissenting, Member McFerran would find that the Respondent violated Section 8(a)(1) by discharging the employee for his protected concerted activity, and would not have overruled WorldMark. She would find that the employee’s complaint constituted an attempt to initiate a group objection over tips, and thus the employee was engaged in concerted activity for the mutual aid and protection of fellow employees.