Notable Board Decisions

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.

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.

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.

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.

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.

The Board (Chairman Ring and Members Kaplan and Emanuel; Member McFerran, dissenting) granted the Employer’s Request for Review of the Regional Director’s Decision and Order dismissing the petition and reversed the dismissal. The Regional Director had dismissed the petition based on unfair labor practice charges that had been found to have merit in two Administrative Law Judges’ decisions, but which had been settled prior to final adjudication by the Board. Given that the decertification petition had been filed before the settlement of the unfair labor practice charges, the Board majority held that Truserv Corp., 349 NLRB 227 (2007), applied to preclude dismissal of the petition. Given that neither judges’ decision was a final decision by the Board that the Employer had committed any unfair labor practices, the Board found that neither judges’ decision imposed any obligation on the Employer absent further action by the Board. Instead, these judges’ decisions became a nullity when the Employer and the Union settled the charges, and the settlement thus precluded any conclusion that the Employer’s conduct at issue in the decisions violated the Act. Dissenting, Member McFerran would have found that the settlement agreement did not erase the evidence—credited by the judges—of the underlying misconduct or change its likely impact on employees, and, accordingly, would have affirmed the Regional Director’s dismissal of the petition, instead of treating the Employer’s conduct as if it had never happened.

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.

In this supplemental decision, the Board (Chairman Ring, Members Kaplan and Emanuel; Member McFerran, dissenting) deferred to the advisory opinion of the National Mediation Board (NMB) that the Employer and its employees at the Portland International Airport are subject to the Railway Labor Act (RLA). In 2015, the Board asserted jurisdiction, certified the Union, and found that the Employer unlawfully refused to recognize and bargain with the Union in a test-of-certification case. The D.C. Circuit Court subsequently remanded the case, finding that the NMB cases on which the Board relied in asserting jurisdiction represented an unexplained departure from longstanding NMB precedent. The Board referred the case to the NMB and the NMB issued an advisory opinion, returning to its traditional six-factor carrier control test and stating its view that the Employer’s operations at the Portland International Airport are subject to the RLA. Agreeing with the NMB’s determination, the Board dismissed the complaint and the petition and vacated the Union’s certification. Dissenting, Member McFerran found that the NMB’s opinion was deficient under the Administrative Procedure Act, and she would have referred the case back to the NMB for it to provide an explanation for its decision to return to the traditional six-factor carrier control test.

The Board (Chairman Ring, and Members Kaplan and Emanuel; Member McFerran, dissenting) reversed the Regional Director’s application of the contract bar doctrine to bar the Employer-Petitioner’s petition. The Employer and the Union had reached a tentative collective-bargaining agreement on October 13, 2016; the Union informed the Employer that it had been ratified on October 15; and the parties met on October 25 to execute the agreement, which by its terms was effective beginning on November 7. On October 25, the Employer was also presented with an employee petition expressing opposition to continued representation by the Union. The Employer believed this raised a good-faith reasonable doubt as to the Union’s continuing majority status, and accordingly filed the instant RM petition, after which it signed the collective-bargaining agreement. On these facts, the Regional Director concluded that the Employer was precluded from challenging the Union’s majority status under Auciello Iron Works, 317 NLRB 364 (1995), enfd. 60 F.3d 24 (1st Cir. 1995), affd. 517 U.S. 781 (1996). The Board, however, held that, under the contract-bar doctrine, a petition is not barred when it is filed after an agreement’s execution but before its effective date. The Board noted that the petition was filed at a time that the Employer could not have lawfully withdrawn recognition, but observed that the Employer did not in fact withdraw recognition here and accordingly withdrawal-of-recognition cases (such as Auciello Iron Works) were inapplicable. The Board further commented that barring the petition under these circumstances would be too high a cost to employee free choice, and suggested that the holding of this case was unlikely to result in employers seeking delayed effective dates. The Board accordingly remanded the case for the Regional Director to determine whether the Employer had in fact established a good-faith reasonable uncertainty as to the Union’s continued majority status among the unit employees. Dissenting, Member McFerran would have affirmed the Regional Director, given that the Employer had entered into the agreement before filing its petition, and careful analysis of policy and precedent (including Auciello Iron Works) supported the Regional Director’s dismissal of the petition.

On remand from the D.C. Circuit Court, the Board applied Raytheon Network Centric Systems, 365 NLRB No. 161 (2017), to reverse its prior decision, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont) and dismiss the complaint allegations that the Respondents’ annual unilateral changes in unit employees’ BeneFlex benefits at two plants violated Section 8(a)(5). Dissenting, Member McFerran found that Raytheon was wrongly decided for the reasons explained in the dissent in that case. In addition, she argued that the Raytheon majority violated administrative due process in overruling the Board’s earlier DuPont decision, and therefore, this case presents the same due-process problem implicated in the recent decision in The Boeing Co., 365 NLRB No. 154 (2017).

The Board (Chairman Ring and Members Pearce, McFerran, Kaplan and Emanuel) found that the Supreme Court’s reasoning in Lucia v. SEC, 585 U.S. ___, 138 S.Ct. 2044 (2018), supports a determination that Board administrative law judges are inferior officers and therefore must be appointed in accordance with the Appointments Clause of the United States Constitution, i.e., by the President, the courts, or the Head of Department. However, unlike the Securities and Exchange Commission judges in Lucia, all Board administrative law judges are appointed by the full Board as the Head of Department, not by other Agency staff members. Thus, the Board denied the Respondent’s motion to dismiss, concluding that the NLRB’s administrative law judge appointments satisfy constitutional requirements.

This case discusses whether the Board should overrule Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“overwhelming” community-of-interest standard) and reinstate the traditional community-of-interest standard for determining an appropriate bargaining unit in union-representation cases.

This case discusses whether the Board should overrule E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), and addresses bargaining obligations that are required before implementing a unilateral change that is consistent with past practice.

This case discusses whether to overrule Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and adopt a new standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the Act. Applying that new standard, the Board upholds Employer’s no-camera rule.

This case discusses whether the Board should overrule the standard for determining joint-employer status articulated in Browning-Ferris Industries, 362 NLRB No. 186 (2015), and return to the pre–Browning Ferris standard that governed joint-employer liability. [Please note that the Board issued an order vacating this decision on February 26, 2018 (366 NLRB No. 26). On June 6, 2018, the Board denied a motion for reconsideration of the order. 366 NLRB No. 93].

This case discusses whether the Board should overrule United States Postal Service, 364 NLRB No. 116 (2016), and return to the “reasonableness” settlement standard and reinstates the authority of the Administrative Law Judge to accept settlements over the objection of the General Counsel and charging parties, subject to Board review if the General Counsel or charging party files exceptions with the Board.

This case discusses the appropriate standard to evaluate orders approving and incorporating settlement terms proposed by a respondent, over the objections of the General Counsel and the charging party.

This case discusses whether an employer has a statutory obligation to bargain before imposing discretionary discipline on unit employees, when a union has been certified or lawfully recognized as the employees’ representative but has not yet entered into a collective-bargaining agreement with the employer.

This case discusses whether unilateral, post-expiration discretionary changes are unlawful, notwithstanding an expired management-rights clause or an ostensible past practice of discretionary change developed under that clause.

This case discusses whether the Board has jurisdiction over a nonprofit corporation that operates a charter school, and, if so, whether the Board should decline to assert that jurisdiction as a matter of its discretion.