NLRB UPDATE

1. NLRB UPDATE CHRISTINE K. D. BELCAID

2. What’s New With… Protected Concerted Activity • Alstate Maintenance, LLC, 367 NLRB No. 58 (Jan. 11, 2019) • Facts: A skycap at JFK Airport, in front of his coworkers, while waiting for the arrival of the van carrying a French soccer team, said, “We did a similar job a year prior and we didn’t receive a tip for it.” Then, when the bags of equipment arrived to be handled, the skycap walked away and did not assist for the majority of the task. The skycap was terminated. He filed an NLRB charge. • Holding: The statement was mere griping and not protected concerted activity (PCA). Even if the activity was concerted, it did not have mutual aid or protection as its purpose. • Decision makes it harder for employees to successfully claim their workplace complaints constitute PCA • Reverses a 2011 Obama-era decision under which essentially any employee complaint made to the presence of coworkers was enough to qualify as PCA • Return to more stringent standard where only complaints that seek to initiate group action, or that truly involve “group” complaints will be considered PCA

3. What’s New With … Handbook Rules • Reminder: “reasonably construe” prong of Lutheran Heritage Village-Livoniaoverruled by The Boeing Co., 365 NLRB No. 154 (2017) • Not a lot of Board decisions because most decisions recently before the Board sent back to ALJs to interpret in light of Boeing • Wilson Health, 09-CA-21-124 (Advice Memorandum December 17, 2018) • Work Rule Not Unlawful: Employees may not complain about coworkers and must “find[] solutions to problems rather than complaining about them or blaming someone for them.” • SSA Pacific, Inc., 20-CA-151433 (ALJD Feb. 27, 2019) - remanded • Work Rule Not Unlawful: “Casuals causing a disturbance at the Dispatch Hall or at any other job-related area shall have their dispatch privileges permanently revoked.” (See NLRB GC Memo 18-04 at page 8) • Southern Bakeries, LLC, 15-CA-174022 (ALJD Feb. 11, 2019) - remanded • Work Rule Unlawful: “Using Company time or resources for personal use unrelated to employment with the Company without proper authorization. This includes leaving Company property during paid breaks or leaving your assigned job or work area without permission. (See NLRB GC Memo 18-04 at pages 6-7) • First American Enterprises, 18-CA-211284 (ALJD Feb. 7, 2019) • Work Rule Unlawful: “Rice Lake Convalescent Center has various types of confidential business information which must be protected. Such confidential information includes, but is not limited to, the following examples...All personnel file information, employee names, addresses, home phone numbers, salary or wage information, medical data and any other information about our employees.”

4. What’s New With … Facebook and the NLRA • Desert Cab, Inc., 367 NLRB No. 87 (Feb. 8, 2019) • Facts: The employer changed a policy which reduced the income of the employees (limousine drivers). The most senior driver complained to management about the new policy in text messages that went unanswered. Then, that driver posted two private Facebook posts complaining about the policy and included sarcastic references to one of the employer’s clients as being a “morgue” and a “crappy” place to be especially for a prolonged period of time. Several employees liked the posts, and one manager, who was Facebook friends with the driver, showed the posts to other managers, who terminated the driver for his posts in violation of an unprofessional conduct rule. • Holding: The employer violated Section 8(a)(1) by discharging the employee for his Facebook posts and by unlawfully applying its unprofessional conduct rule. • Wendt Corp., 03-CA-212225 (ALJD Feb. 15, 2019) • Facts: A supervisor informed an employee that although he did not care if the employee had blocked him on Facebook because the employee liked the union, the supervisor and people in the office could still see whatever the employee was viewing and liking on Facebook. • Holding: The supervisor’s comment violated Section 8(a)(1) because it unlawfully created the impression of surveillance of the employee’s union activities.

5. What’s New With … Decertification • Silvan Indus., 367 NLRB No. 28 (Oct. 26, 2018) • Contract-Bar Doctrine: Generally, the NLRB will dismiss any election petition that is filed by employees while a current CBA is in effect for up to three years of the term. Employers or rival unions are barred from filing an election petition during the “contract” period. • Facts: On October 13, 2016, the employer and the union reached agreement on the CBA which was set to take effect November 7, 2016. On October 15, 2016, the union notified the employer the bargaining unit employees ratified the CBA, and the parties agreed to meet in person on October 25, 2016 to execute the CBA. On October 25, 2016, an employee gave the employer a petition which expressed opposition to the union. Later that day, the employer filed an RM petition. Also that day, the parties executed the CBA. • Holding: The RM petition filed by the employer was timely filed and not barred by the CBA because although it was filed after the agreement was executed, it was also filed before the effective date. • Employers may challenge whether unions still have majority support between the date that a CBA is executed but before its effective date. • This case shows some flexibility by the current Board regarding decertification, although it is still extremely difficult for a union to be removed from the workplace.

6. What’s New With … Joint Employer • Browning-Ferris Indus. of Cal., Inc. v. NLRB, No. 16-1028 (D.C. Cir. Dec. 28, 2018) • The Court affirmed the Board’s articulation of the joint-employer test, which includes consideration of a putative joint employer’s reserved right to control and its indirect control over the employees’ terms and conditions of employment. • The Court reversed the Board’s application of the indirect control element to the extent it did not distinguish between indirect control that the common law of agency considers inherent in ordinary third-party contracting relationships, and indirect control over the essential terms and conditions of employment. The Court remanded that aspect to the Board for it to explain and apply its test in a manner consistent with the common law of agency. To be continued… • NLRB Chairman John Ring Letter to the Democratic Leadership of the House Education and Labor Committee Responding to their Letter • Proposed Joint-Employer Rule-Making

7. What’s New With … Independent Contractors • SuperShuttle DFW, Inc., 367 NLRB No. 75 (Jan. 25, 2019) • Reverses FedEx Home Delivery, 361 NLRB 610 (2014) • Return to traditional common-law agency test to determine whether a worker is an employee (covered by NLRA) or an independent contractor (not covered by the NLRA) • Applying the old standard, the Board concluded the SuperShuttle franchisees are not statutory employees under the NLRA but rather independent contractors, and accordingly dismissed the representation petition at issue. • The franchisees’ leasing or ownership of their work vans, method of compensation, and control over their daily work schedules and working conditions provided them with significant entrepreneurial opportunity for economic gain.  These factors, along with the absence of supervision and the parties’ understanding that the franchisees are independent contractors, resulted in the finding that the franchisees are not employees under the NLRA. • The decision stripped SuperShuttle drivers in Dallas-Fort Worth of the right to organize, which they sought to do. • Possible Application to Uber/Lyft and Maybe Even Your Business…

8. What’s New With … Strikers • Alaris Health at Castle Hill, 367 NLRB No. 52 (Dec. 21, 2018) • Economic Strikers v. Unfair Labor Practice Strikers • Facts: After unfair labor practice strikers made an unconditional offer to return to work the employer explained it could not reinstate the workers because it contractually committed to staffing agencies supplying temporary replacements that it would guarantee the replacements’ employment for a set number of weeks. • Holding: The employer’s refusal to reinstate the workers would place “a significant burden on the employees’ right to strike,” and would allow the employer “to delay reinstatement or to obtain [time] during which [it] is not required to pay backpay.” Thus, the employer violated Section 8(a)(3) by refusing to immediately reinstate 15 unfair labor practice strikers.

9. Any questions? • Mahalo! • Christine K. D. Belcaid • Direct Line: 808.523.5304 • Email: ckd@torkildson.com