On the Workforce Bulletin blog, I recently co-authored “New York Hero Act Amendments Passed and Sent to Governor for Signature” with my colleagues .

Employers with union represented employees should pay special attention to the provisions of the HERO Act that mandate a role for labor unions in the Workplace Safety Committees provided for in the Act.

Following is an excerpt:

As we previously reported, on May 5, 2021, New York Governor Andrew Cuomo signed the Health and Essential Rights Act (the “HERO Act” or “Act”) into law, permanently codifying COVID-19-related health and safety protocols. In a memorandum issued with the signing, Governor Cuomo announced that he had secured an agreement with the Legislature for amendments to the Act to address certain ambiguities and technicalities.

On May 14, 2021, State legislators introduced bills (S6768/A7477) (“Bills” or the “Amendments”) to address some of the Governor’s concerns. The Bills recently passed in both legislative houses. Governor Cuomo is expected to sign the Amendments into law shortly. …

Read the full post here.

Following on his promises to be “the most pro-union president you’ve ever seen,” President Joe Biden signed the Executive Order on Worker Organizing and Empowerment (“Executive Order”) on April 26, 2021, creating a task force whose purpose is to strengthen unions and make it easier for workers to unionize. Along with endorsing the Protecting the Rights to Organize Act in March, President Biden is affirmatively putting a heavy federal foot on the scale to empower unions and bolster declining union membership, both in the public and private sectors.

The Executive Order criticized the federal government for not having used its “full authority” to support unions and declared it necessary for the federal government to take a “comprehensive approach” to advancing union organizing and collective bargaining. Under these auspices, the Executive Order created the Task Force on Worker Organizing and Empowerment (“Task Force”), led by Vice President Kamala Harris and Secretary of Labor Marty Walsh, whose stated mission is to “mobilize the federal government’s policies, programs, and practices to empower workers to organize and successfully bargain with their employers.” The Task Force’s mission also includes determining ways to “increase worker power” in areas of the country with “hostile” labor laws and marginalized workers (including women and people of color) and in industries that are difficult to organize or that are changing.

The Task Force will make recommendations within 180 days and will then be responsible for implementing recommendations approved by President Biden.

In the Fact Sheet accompanying the Executive Order, the White House stated that it believes that declining union membership has contributed to widespread and deep economic inequality, stagnant real wages, the shrinking of America’s middle class, a weakened democracy, and the exacerbation of the pay gap for women and workers of color.

While it is too early to tell what changes to labor law will materialize from the Task Force’s recommendations, one thing is certain: President Biden’s administration is determined to make unions more powerful in the coming years than they have ever been in U.S. history. Employers should ready themselves.

On March 30, 2021, the Office of General Counsel of the National Labor Relation Board (“NLRB” or “Board”) released an Obama-era Advice Memorandum, originally prepared in 2016, opining that racially charged comments were protected concerted activity.  Just one day later, on March 31, 2021, Acting General Counsel Peter Sung Ohr affirmed in his latest Memorandum (“March 31st Memorandum”) his plan to pursue a broadening of employees’ protections under Section 7 of the National Labor Relations Act (“NLRA” or “Act”) beyond concerted activities relating to union activity and labor organizing, for example, by expanding the Board’s traditional view of protected concerted activity to protect employees’ political and social justice advocacy activities under Section 7.  These publications are a harbinger of the enforcement priorities of the General Counsel under the Biden administration.

The Established Section 7 Standard for Protected Concerted Activity

As background, Section 7 of the NLRA affords employees the right “to engage in [] concerted activities for the purpose of . . . mutual aid or protection.”  29 U.S.C. § 157.  Activity is held to be for “mutual aid or protection” (i.e., protected) if it is intended to improve conditions of employment, see Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 (1978), and it is “concerted” if it is intended to initiate, induce, or prepare for group action, see Meyers Indus., Inc., 281 NLRB 882, 887 (1986).  It is a violation of Section 8(a)(1) of the Act to discharge or otherwise take adverse action against employees for engaging in protected concerted activity—whether they are unionized or not and regardless of whether the activities are intended to seek union representation.

In the context of employee speech, an employee’s use of offensive language may be so “offensive, vulgar, defamatory, or opprobrious” as to render otherwise connected protected activity unprotected.  See Dreis & Krump Mfg., 221 NLRB 309, 315 (1975), enfd, 544 F.2d 320 (7th Cir. 1976).  But the Board has taken a narrow view of when such speech loses the Act’s protections, and has found, for example, workers who made explicit threats—laced with sexual and racial slurs—while picketing were still protected by Section 7.  See, e.g., Detroit Newspaper Agency, 342 NLRB 223, 267-68 (2004) (striker still protected despite using despicable racial and sexual epithets).  (However, as we discussed here, the Board recently made it easier to discharge employees for using offensive speech.)

Acting General Counsel Ohr’s March 31st Memorandum

Significantly, Acting General Counsel Ohr’s March 31st Memorandum broadly construes the ambit of Section 7, and states an intent to apply it in non-unionized workplaces and to employees’ discussions on topics such as workplace health and safety and racial discrimination, and employees’ political and social justice advocacy activities.  The March 31st Memorandum thus signals that the General Counsel—like the General Counsel under the Obama Board—will seek to expand Section 7’s contours, and not just in unionized workplaces.

Acting General Counsel Ohr distinguished decisions by the Trump-appointed NLRB majority that curtailed Section 7 rights and directed officers in the Board’s regional offices to effectuate the enlargement of Section 7’s scope by “vigorously” enforcing two Section 7 doctrines: (1) the right to engage in concerted activity for the purpose of mutual aid or protection, and (2) inherently concerted activity.

Acting General Counsel Ohr remarked that, “[g]oing forward, employee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protection under Section 7 of the Act” and provided the following examples of activities that constitute mutual aid or protection:

  • a hotel employee’s interview with a journalist about how earning the minimum wage affected her and employees like her, and how legislation to increase the minimum wage would affect them;
  • a “solo” strike by a lone pizza-shop employee to attend a convention and demonstration where she and others advocated for a $15-per-hour minimum wage; and
  • protests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids.

Acting General Counsel Ohr ties together these scenarios and links them to Section 7 by explaining that they involve issues within the employer’s control, “like payment of wages and employers’ willingness to hire immigrants.” Based on this reasoning, employees’ interactions may be inherently concerted so long as the employees are engaging with each other to discuss or otherwise work toward improving their terms and conditions of employment, even if the interaction is a one-sided discussion involving only a speaker and listener.  He further clarified that group action is not a requirement for activity to be deemed concerted where an employee’s discussions of certain “vital” terms and conditions of employment are sufficient to render their interaction inherently concerted, even if other employees who are present during the conversation do not agree with the opinion or complaint or seek the same outcome.  Further, if an employee tells another employee about their thoughts on a political or social justice topic and that topic can be reasonably traced to workplace conditions, both employees have now potentially engaged in protected activity, regardless of whether the listening employee responds to or agrees with the comments made by the opining employee.  Arguably, almost any political or social justice topic may have a direct nexus to workplace conditions, and, moving forward, any conversation about such a topic may be considered protected concerted activity.

The Protection of Racially Charged Comments—Advice Memorandum

The Advice Memorandum, released on March 30, 2021, provides an example of this expanded view of protected Section 7 activities.  The Division of Advice (“Advice”) analyzed whether a nurse (“Charging Party”) was discharged by her employer for her “protected” Section 7 activity.  See SunBridge Healthcare LLC, Case 01-CA-156820, Advice Memorandum dated Jan. 20, 2016.  The Charging Party, who is Hispanic, worked as a certified nursing assistant.  The Charging Party believed that her employer treated Black employees more favorably than non-Black employees, and discussed this perceived unfair treatment with other employees who shared her concerns.

On one occasion, the Charging Party was unhappy that the Director of Nursing (“Director”) only approved a two-week vacation instead of the one-month vacation the Charging Party had requested.  After this conversation, the Charging Party proceeded to a patient’s room where she “said that perhaps the Director had denied her vacation because she wasn’t [B]lack.”  A nursing unit manager and two coworkers all claimed that they heard this comment.

Following this incident, one of her coworkers (“Coworker 1”) informed the Director that she overheard this comment and that earlier in the day, she had also heard the Charging Party say, “[T]hese freaking Africans, they lie about their parents being sick and they are granted four weeks off, and me I’m only asking to go for my wedding and I can’t get it.”  A few days later, the Director informed the Charging Party that someone had complained about her racially charged comments.  The Director, after conducting an investigation, gave the Charging Party a “written final warning” for “harassment of a coworker by making racial slurs.”

Two days later, the Charging Party was asked to work mandatory overtime, which she refused to do.  The Charging Party was suspended as a result.  During her suspension, Coworker 1 reported to the employer that after the Charging Party was issued the written warning for harassment, the Charging Party had refused to interact with Coworker 1 and was retaliating against her and intimidating her.  As a result, the employer discharged the Charging Party for “harassment and retaliation to a colleague.”

On these facts, Advice opined that the Charging Party’s termination was in violation of her Section 7 rights, and made three important findings, consistent with the tenets set forth in the Acting General Counsel’s March 31st Memorandum.

First, Advice opined that the Charging Party’s comment concerning the reason her leave request was denied was protected concerted activity.  According to Advice, the comment was protected because complaints about racial discrimination are a matter of mutual concern for employees, and it was concerted despite concerning her personal leave request, because it was a continuation of earlier discussions amongst employees about race discrimination in the workplace.

Second, and more significantly, Advice opined that discussions about racial discrimination in the workplace are inherently concerted.  Advice explained that the Board has long held that discussions about wages and job security are inherently concerted even absent a showing that group action was contemplated, since they are “vital” terms and conditions of employment and the “grist on which concerted activity feeds.”

In other words, complaints about racial discrimination, even if they only concern the complainer and the complainer does not intend to induce group action, will per se be considered concerted under the rationale Advice described.  Under Advice’s reasoning, then, all complaints of racial discrimination in the workplace would be deemed concerted under Section 7.

Third, Advice found that the employer discharged the Charging Party for engaging in protected activity (i.e., her complaint concerning the denial of her time-off request).  Advice found that the temporal proximity between the Charging Party’s complaint and her discharge, along with the employer’s knowledge of the Charging Party’s other complaints of discrimination, raised an inference that she was discharged for protected concerted activity.  In doing so, Advice stated that the Charging Party’s invidious racial stereotyping equating Africans with “liars” “was not so egregious as to lose the protection of the Act.”  Stated differently, because the Charging Party’s statement that the employer found to violate its harassment policy was connected with protected concerted activity (i.e., complaints about preferential treatment for Black employees), it could not justify adverse action without violating Section 7.

Advice’s third conclusion is troubling for employers and employees.  Title VII of the Civil Rights Act of 1964 (“Title VII”) requires employers to prevent workplace harassment based on “race, color, religion, sex or national origin” and to investigate reports of such harassment and to take prompt and effective remedial action.  See 42 U.S.C. § 2000e-2(a); 29 C.F.R. § 1604.11(d).  Local laws in many states and cities have even stricter requirements regarding preventing and addressing workplace harassment.  Employers that do not nip burgeoning harassment in the bud risk liability, including punitive damages.  See Faragher v. City of Boca Raton, 524 U.S. 775, 800 (1998).  They also risk incurring bad publicity that may tarnish their public image, damage business relationships, reduce profitability, and hinder their ability to attract talent.

Advice’s framework for evaluating and responding to harassing language in the workplace places employers in a catch-22 situation: discipline the employee for “not so egregious” harassment and risk violating the NLRA if the employee is otherwise engaging in protected activity, or turn a blind eye to the harassing behavior and be vulnerable to costly, and sometimes very public, harassment claims under Title VII.

This framework, coupled with the Acting General Counsel’s pledge to “vigorously” enforce Section 7 rights, may also portend an effort to resurrect Obama-era precedent that would further expand workers’ Section 7 rights at the expense of employers’ obligations under Title VII.  For example, in Banner Estrella Medical Center, 363 NLRB 1108 (2015), the Obama Board held that “an employer may restrict [discussions of discipline or ongoing disciplinary investigations] only where the employer shows that it has a legitimate and substantial business justification that outweighs employees’ Section 7 rights” to discuss such investigations.  Thus, an employer cannot rely on a blanket confidentiality policy to protect its workplace investigations but must conduct a case-by-case analysis to determine whether a specific investigation warrants confidentiality.  (As we discussed here, the Trump Board overruled Banner Estrella.)

This framework proved problematic for employers seeking to comply with their obligations under Title VII and similar laws.  The Equal Employment Opportunity Commission (“EEOC”) instructs employers that their “anti-harassment policy and complaint procedure should contain, at a minimum . . . [a]ssurance that the employer will protect the confidentiality of harassment complaints to the extent possible[.]”  The EEOC’s guidance is not just good investigatory practice; it tracks Supreme Court cases, which provide employers a defense to a harassment claim if, among other proactive matters, the employer implemented a reporting mechanism, prompt investigation, and adequate remedial measures to prevent future conduct.  See, e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998).  Should the Board return to the Banner Estrella framework, this would thus place employers in another catch-22 situation: follow the EEOC’s guidance and risk violating workers’ Section 7 rights, or follow Banner Estrella and risk harassment liability.

*          *          *

In his March 31st Memorandum, Acting General Counsel Ohr issued this warning to employers: “Going forward, under the framework of the law as presently articulated, cases involving retaliation against concerted employee conduct will be vigorously pursued, where these and other factors exist to tie workers’ protests to their interest as employees.”  Employers must heed this warning and tread carefully.  Before taking adverse action to remedy harassment or in regard to an employee’s political and social justice advocacy activities at or outside of the workplace, even if unrelated to an employees’ union and labor organizing activities, employers need to analyze whether the harassing speech or advocacy activities are now protected conduct under the General Counsel’s broadened interpretation of Section 7 rights.

Confidential arbitration agreements between employers and their employees are commonplace.  Employers favor such agreements for many reasons, including preserving privacy and allowing legitimate claims to be either settled or litigated based on their merits, rather than the threat of public embarrassment or high defense costs.  Employees, too, may value the confidentiality afforded by arbitration.  In contrast to private and confidential arbitration proceedings, public testimony and publicly filed court pleadings, motions, and briefs may contain unflattering or salacious allegations that are readily accessible to the public and may harm an employee’s future employment prospects and reputation.

Confidentiality provisions, however, potentially restrict employees’ freedom to discuss terms and conditions of employment.  Accordingly, in the past, the National Labor Relations Board (“Board” or “NLRB”) held that such provisions violated Section 7 of the National Labor Relations Act ( “NLRA”) because they prevented employees from discussing workplace matters.  See, e.g., Professional Janitorial Service of Houston, 363 NLRB No. 35 (2015).  Recently, though, the Board clarified that in light of recent U.S. Supreme Court and Board precedent, Section 7 no longer prohibits confidential arbitrations—at least for the time being.

In Dish Network, LLC, 370 NLRB No. 97 (2021), the Board analyzed broad confidentiality agreements that the employer required all applicants for employment to sign, which provided, in relevant part:

  1. “Employee and DISH agree that any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment . . . shall be resolved by arbitration [under the Federal Arbitration Act].” (The “first clause.”)
  2. “[A]ll arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards shall be confidential[.]” (The “second clause.”)

The Board initially determined that both these clauses were unlawful under Sections 7 and 8(a)(1) of the NLRA, see Dish Network, LLC, 365 NLRB No. 47 (2017), but it subsequently revisited these holdings in light of the Board’s decision in The Boeing Co., 365 NLRB No. 154 (2017), which overruled the “reasonably construe” standard in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  (The Boeing case is discussed here.)

On remand, the Board analyzed whether the first clause interfered with employees’ Section 7 rights under Boeing, and held that it did because such language—requiring employees to arbitrate “any claim, controversy and/or dispute”—“makes arbitration the exclusive forum for resolving all employment-related disputes between the [employer] and any of its employees, including arising under the [NLRA.]”  Critically, there was no qualifying language expressly recognizing employees’ right to file claims or charges with the Board or, more generally, with administrative agencies.  As such, in the Board’s view, the first clause fell under Boeing Category 3 because it restricts “employees’ access to the Board [which] render[s] the [first clause] unlawful.”

With respect to the second clause, the Board partially reversed its earlier finding, and found that certain aspects were lawful under the NLRA.  Building on its decision in California Commerce Club, Inc., 369 NLRB No. 106 (2020), which held in light of the Supreme Court’s holding in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 200 L. Ed. 2d 889 (2018) (“Epic Systems”) that confidentiality provisions in arbitration agreements were not per se unlawful under Section 7, the Board concluded that the second clause was lawful under Section 7 insofar as it required all arbitral “proceedings,” including hearings, discovery, and awards, to be kept confidential.  (The Epic Systems case is discussed here.)  In short, because these provisions were shielded by the Federal Arbitration Act (“FAA”), Section 7 could not be used to invalidate them.

The Board, however, found the requirement in the second clause that “settlements” remain confidential violated employees’ rights and was unlawful under Section 7.  According to the Board, the FAA is not implicated with respect to settlements—whether confidential or not—because “a settlement removes a dispute from arbitration or prevents it from going to arbitration in the first place.”  As such, the Board held that the legality of this provision was governed by Boeing, not Epic Systems.

Unshielded by the FAA, the Board found that the mere maintenance of this rule concerning settlements violated the NLRA.  The Board reasoned that the rule would operate to preclude disclosure of settlements involving disputes that arose under the NLRA and other disputes that concerned wages, hours, or other terms or conditions of employment.  “Accordingly, by prohibiting employees from disclosing the terms of any settlement, the Agreement explicitly restricts Section 7 activity.”

Chairman Lauren McFerran dissented in relevant part, and her dissent may prove a harbinger of the Board’s direction in the near future.  Chairman McFerran would have invalidated the entire second clause because it “interferes with employees’ core Section 7 right to discuss terms and conditions of employment with their co-workers,” and nothing in the second clause is shielded by the FAA.  According to Chairman McFerran, the Epic Systems Court found that the NLRA could not be read to implicitly prohibit class-action waivers because the individualized nature of arbitration is one of arbitration’s fundamental attributes, which the FAA explicitly protects. But, “[h]ere, the shoe is on the other foot”—Section 7 rights are dependent on employees’ right to communicate with one another, whereas the FAA is not dependent on confidentiality.  In other words, Chairman McFerran believes that with respect to confidentiality, it is the FAA that must yield to the NLRA, because confidentiality provisions squarely interfere with employees’ core Section 7 rights while they are not squarely protected by the FAA.

This, of course, is not self-evident.  As courts have recognized, “[t]he federal policy in favor of arbitration is promoted by permitting one of the principle advantages of arbitration—confidentiality—to be achieved.”  Glob. Reinsurance Corp.-U.S. Branch v. Argonaut Ins. Co., No. 07 CIV. 8196 (PKC) (S.D.N.Y. 2008).  Thus, just as proceeding individually is one of “arbitration’s fundamental attributes,” so too is confidentiality.

*          *          *

Dish Network, LLC means that, at least for now, employers and employees may agree on conducting their dispute resolution on a confidential basis without violating the NLRA.  (State law and other laws may, however, limit the enforceability of these provisions.)  This should inure to the benefit of both.  Employers, therefore, should ensure that their confidentiality provisions are carefully drafted so as not to interfere with employees’ rights to file charges with administrative agencies, such as the NLRB.

But, with the Board set to flip again to Democrat control as current appointees’ terms expire, businesses wishing to utilize confidentiality provisions should account for the distinct possibility that the Board will overturn decisions like Dish Network, LLC, and once again take the position  that confidentiality provisions in arbitration agreements are per se unlawful under Section 7.

We will continue to monitor and provide developments on confidentiality under the NLRA and other notable NLRB decisions.

New York State now requires employers to grant employees paid time off for COVID-19 vaccinations. In my recent post with Susan Gross Sholinsky and Nancy Gunzenhauser Popper, “New York Issues FAQs on Paid Vaccination Leave Law,” we note that the law allows for limited waivers in collective bargaining agreements. While the law is vague, the State has now given some additional guidance in FAQ’s issued this week.

The following is an excerpt from the post:

As we recently reported, as of March 12, 2021, all private employers in New York must provide their employees with up to four hours of paid leave to get each COVID-19 vaccination shot. The State has now released guidance on the new law (“Law”) in the form of Frequently Asked Questions (“FAQs”). Most importantly, the FAQs clarify that the Law does not create any retroactive benefit rights to paid vaccination leave. Accordingly, while an employer is free to apply the law retroactively if it wishes, the Law mandates that “only employees receiving vaccinations on or after March 12, 2021 are eligible for paid leave.”

Click here to read the full post on the Workforce Bulletin blog.

As featured in #WorkforceWednesday:  This week on our special podcast series, Employers and the New Administration, we look at what President Biden’s support for unions throughout his political career might mean for labor management relations.

In this episode, Glenn Spencer, Senior Vice President of the Employment Policy Division at the U.S. Chamber of Commerce, and attorney Steve Swirsky discuss what employers can expect from the NLRB under the Biden administration. Attorney David Garland leads the conversation.

See below for the video edition and the extended audio podcast:

Video: YouTubeVimeo.

Extended Podcast: Apple PodcastsGoogle Podcasts,
OvercastSpotifyStitcher.

On Tuesday, the three-member, all Republican, National Labor Relations Board (the “Board”) issued a 3-0 decision in General Motors LLC and Charles Robinson, 369 NLRB No. 127 (July 21, 2020), reversing its longstanding standard for determining when employers violate the National Labor Relations Act (the “Act”) by disciplining employees who, while engaged in activity protected under Section 7 of the Act, use profanity-laced speech, as well as racial, ethnic or sexist slurs, or other abusive conduct toward or about management or other employees. Going forward, including to any unfair labor practice case currently pending, the Board will apply its familiar burden-shifting standard under Wright Line, pursuant to which a charging party must show through evidence that the employer would not have disciplined the employee but for his or her engaging in the protected activity, and the employer will not violate the Act where it shows the employee would have been disciplined because of the abusive speech or conduct regardless of any involvement in protected activity. The Board will no longer treat the engagement in the protected activity and the abusive conduct as being analytically inseparable. Nor will the Board any longer presume in such circumstances the issue of causation between the employee’s discipline and his or her involvement in protected activity. In so doing, the Board has brought the Act into the modern era so as to be consistent with current workplace standards of decorum and employers’ legal obligations under antidiscrimination laws. To those union leaders and employees who engage in abusive and offensive language or other conduct, similar to that old television dinosaur Archie Bunker, they may well reminisce about the old days when guys like them had it made and they were protected from discipline.

In framing its General Motors decision, the Board noted at the outset that it has been “repeatedly asked to determine whether employers have unlawfully discharged or otherwise disciplined employees who had engaged in abusive conduct in connection with activity protected by Section 7 of [the Act].” 369 NLRB No. 127, slip op at 1. As three such recent examples, the Board pointed to cases where employers discharged employees who had 1) “unleashed a barrage of profane ad hominem attacks against the owner … during a meeting in which the employee also raised concerted complaints about compensation;” 2) “posted on social media a profane ad hominem attack against a manager, where the posting also promoted voting for union representation;” and 3) “shouted racial slurs while picketing.” The General Motors Board noted that in deciding each of these prior cases under the old standard it had “assumed that the abusive conduct and the Section 7 activity are analytically inseparable.” Id. By so doing, the Board had “presumed a causal connection between the Section 7 activity and the discipline at issue, rendering the Wright Line standard – typically used to determine whether discipline was an unlawful response to protected conduct or lawfully based on reasons unrelated to protected conduct – inapplicable.” Id. In General Motors, the flaw the Board described in this approach is that it “has not taken into account employers’ arguments that the discipline at issue was motivated solely by the abusive form or manner of the Section 7 activity or that the employer would have issued the same discipline for the abusive conduct even in the absence of the Section 7 activity.” Id. at 1, 10. This has caused employers at times to be faced with standards under the Act that “conflicted alarmingly with employers’ obligations under federal, state and local antidiscrimination laws,” which may require employers to take prompt corrective action to prevent hostile work environments. Id. at 1, 6-7.

Under the Board’s prior precedent, an employer violated the Act “by disciplining an employee based on abusive conduct ‘that is part of the res gestae’ of Section 7 activity, unless evidence shows that the abusive conduct was severe enough to lose the employee the Act’s protection.” Id. at 4 (quoting Stanford Hotel, 344, NLRB 558, 558 (2005). As the Board explained, “[t]his precedent was based on the view that ‘employees are permitted some leeway for impulsive behavior when engaged in concerted activity,’ and the accommodation of such behavior is ‘balanced against an employer’s right to maintain order and respect.’ ” Id. (quoting Daimler Chrysler Corp., 344 NLRB 1324, 1329 (2005)).  To determine whether conduct “is severe enough to lose protection” the Board had applied differing setting-specific standards, each depending on the context of the Section 7 activity. Id. In ascending order of employee leeway permitted by the Board in these settings were workplace discussions with management, social media posts and other conversations among employees, and picket line conduct. Id.

For workplace discussions with management, the Board had applied the four-factor standard under its decision in Atlantic Steel, 245 NLRB 814 (1979), which considers “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice.” Id. (quoting Atlantic Steel, 245 NRLB at 816). The General Motors Board noted that application of the Atlantic Steel factors over the years has “produced inconsistent outcomes,” and so has failed to provide employers with clear guidance. Id. at 4-5. Similarly, for social media posts and coworker discussions the Board has previously applied a totality of the circumstances approach, which the General Motors Board found “promises to create the same, if not more, inconsistency and unpredictability.” Id. at 6. Finally, in cases involving picket line conduct the Board has previously applied its standard under Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), which the cases applying the same “have found picket-line misconduct to lose the protection of the Act only where it involves an overt or implied threat or where there is a reasonable likelihood of an imminent physical confrontation.” Id.

Rejecting the prior setting-specific standards approach described above, the Board in General Motors announced a move to its longstanding Wright Line standard “for deciding cases where employees engage in abusive conduct in connection with Section 7 activity, and the employer asserts it issued discipline because of the abusive conduct.” Id. at 7. In announcing this move, the Board observed that “[a]bsent evidence of discrimination against Section 7 activity, we fail to see the merit of finding violations of federal labor law against employers that act in good faith to maintain civil, inclusive, and healthy workplaces for their employees.” Id. at 8. The Board went on to note that “[w]e read nothing in the Act as intending any protection for abusive conduct from nondiscriminatory discipline, and, accordingly, we will not continue the misconception that abusive conduct must necessarily be tolerated for Section 7 rights to be meaningful.” Id. Continuing, the Board stated “American workers engage in these activities every day without resorting to abuse, and nothing in the text of Section 7 suggests that abusive conduct is an inherent part of the activities that Section 7 protects or that employees who choose to engage in abusive conduct in the course of such activities must be shielded from nondiscriminatory discipline.” Id. Rather, the Board held that:

Abusive speech and conduct (e.g., profane ad hominem attack or racial slur) is not protected by the Act and is differentiable from speech and conduct that is protected by Section 7 (e.g., articulating a concerted grievance or patrolling a picket line). Accordingly, if the General Counsel fails to show that protected speech or conduct was a motivating factor in an employer’s decision to impose discipline, or if the General Counsel makes that showing but the employer shows that it would have issued the same discipline for the unprotected, abusive speech or conduct even in the absence of Section 7 activity, the employer appears to us to be well within its rights reserved by Congress.

Id. at 8-9.

Applying this rationale, the General Motors Board found that its longstanding Wright Line burden-shifting framework is the right one, regardless of the setting involved, as it “allows the Board to protect Section 7 activity without erroneously extending the Act’s protection to abusive conduct.” Id. at 9. Under Wright Line, the General Counsel must initially show (in any setting) that (1) the employee engaged in Section 7 activity, (2) the employer knew of that activity, and (3) the employer had animus against the Section 7 activity, which must be proven with evidence sufficient to establish a causal relationship between the discipline and the Section 7 activity.” Id. at 10.  Such evidence of a causal relationship is “probative of unlawful motivation only if it adds support to a reasonable inference that the employee’s Section 7 activity was a motivating factor in the employer’s decision to impose discipline.” Id. If the General Counsel meets this initial burden, the employer must “meet its defense burden to prove that it would have taken the action even in the absence of the Section 7 activity,” which defense will fail if the evidence in total “establishes that the reasons given for the employer’s action are pretextual – that is, either false or not in fact relied upon.” Id. (internal quotation omitted).

This “realignment” of standards “honors the employer’s right to maintain order and respect,” while avoiding potential conflicts with antidiscrimination laws, such that “the Board will no longer stand in the way of employer’s legal obligation to take prompt and appropriate corrective action to avoid a hostile work environment on the basis of protected characteristics.” Id. Employers should be cognizant that it remains unlawful to target employees who engage in Section 7 activity for discipline that would not have occurred “but for that protected activity.” However, under the Board’s General Motors decision “employees who engage in abusive conduct in the course of Section 7 activity will not receive greater protection from discipline than other employees who engage in abusive conduct.” Id.

Moreover, the Board determined that application of its Wright Line standard shall apply retroactively to cases where employees engaged in abusive conduct in the course of protected Section 7 activity. In so holding the Board concluded that any “ill effects” of applying its General Motors decision retroactively “to all pending cases in whatever stage” are “outweighed by the potential harm of producing results contrary to the Act’s principles and potentially at odds with antidiscrimination law.” Id. at 11. Specifically, the Board found that continuing to find employers violated the Act in pending cases through the application of the now overruled standards, “where employers were simply exercising their right to maintain a civil, safe, nondiscriminatory workplace for their employees would the greater injustice.” Id.

Applying the Wright Line standard to the underlying facts and allegations in the General Motors case, the Board remanded the case to the to the Administrative Law Judge to reopen the record and take evidence relevant to the Wright Line standard. The underlying facts involved suspensions of a union committeeman for profanity-laced rants in the course of protected Section 7 discussions with management. However, under the old Atlantic Steel standard, the General Counsel had not introduced evidence that the employer had any animus against the Section 7 activity (as opposed to only the abusive conduct), and the employer had not been allowed to introduce evidence “now relevant [as] to whether the [it] would have suspended [the employee] for his abusive conduct even in the absence of Section 7 activity.” Id.

The key takeaway for employers is the availability of a new defense in cases involving profane or offensive language or other abusive conduct by employees in the course of engaging in otherwise protected concerted /union activity (whether made in the course of grievance or investigative meetings, bargaining meetings, social media posts, or on a picket line, etc.).  This new defense in these circumstances allows an employer to discipline an employee for abusive conduct without violating the Act only to the same extent the employer would have disciplined any other employee for the same or comparable abusive conduct, such that the employer can demonstrate the discipline was not discriminatorily motivated by the employee’s involvement in the protected Section 7 activity.  The availability of this Wright Line defense in these circumstances is significant, however, employers should still be careful to assess whether they can make the required evidentiary showing and be mindful that sloppy or inconsistent discipline practices with respect to profane speech in the workplace, for example, may still result in a finding that discipline was unlawfully motivated by an employee’s involvement in protected activity. Also, depending on what happens in the November election, the current make-up of the GOP controlled Board could begin to change in 2021, and while it is not clear whether a Democratically controlled Board would look to roll the standard all the way back to that existing before the General Motors decision, one could certainly expect at least some moderation of the standard. For example, there could be some moderation where the issues involve the use of profanity but do not involve conduct potentially creating a hostile work environment along the lines of a protected characteristic so as to potentially conflict with the employer’s obligations under antidiscrimination laws. In light of the nuances and complexities that can come up in determining whether underlying activity is protected under the Act, and whether the employer can likely make the required showing of nondiscriminatory discipline motivated by unprotected abusive conduct, employers should continue to consult with labor counsel and labor relations professionals regarding disciplinary decisions in this area.

On June 23, 2020, the National Labor Relations Board (“NLRB” or “Board”) overruled a 2016 decision that required employers to bargain over the discipline of employees during negotiations for a first contract.  The Board noted that the decision it issued Tuesday in 800 River Road Operating Co., LLC d/b/a Care One at New Milford, 369 NLRB No. 109 (“Care One”), reinstated “the law as it existed for 80 years,” under which the National Labor Relations Act (“Act”) did not impose a “predisciplinary bargaining obligation” on employers with newly-unionized workforces.  The Board’s restoration of what had been well-settled law under the Act reinstates employers’ ability to apply disciplinary policies in accordance with past practice while negotiating a first collective bargaining agreement (“CBA”).

The Obama Board’s Prior Imposition of a New Statutory Obligation to Bargain Over Discipline

In 2016, a Board majority, with then-Member Miscimarra dissenting, held in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (“Total Security”) that employers have a statutory obligation to bargain with a union before imposing “serious discipline” on employees once a union has been certified to represent the employees, but before the parties have reached agreement on a first contract.  The Board in Total Security based this purported statutory obligation on the well-established body of law that requires employers to maintain the status quo with regard to terms and conditions of employment that constitute a mandatory subject of bargaining once a union is certified (or voluntarily recognized).

Under the now rejected Total Security standard, employers that had not yet entered into a collective bargaining agreement with a union were required, with few exceptions, to provide notice and an opportunity to bargain before serious discipline of employees represented by that union because such actions involved discretionary considerations.  The notice and bargaining obligation of Total Security applied even if an employer simply adhered to an established disciplinary policy already in place before a union became the representative of an employer’s workforce.  The limited exceptions to this obligation applied when an employer imposed something less than “serious discipline” (under the Board’s ambiguous definition of that term), an employee’s presence at work posed “a serious, imminent danger to the employer’s business or personnel,” or where an employer and union negotiated and implemented an interim grievance-arbitration procedure before agreement to a final CBA.  As presciently noted in the Total Security dissent, the Total Security-imposed bargaining obligations, “replete with qualifications and exceptions . . . ma[de] it impossible for parties to achieve any reasonable measure of certainty and predictability.”

A Return to Well-Settled and Common Sense Bargaining Obligations

In Care One, the Board returned to established precedent regarding the obligation to bargain over employee discipline before parties reach agreement on a first contract.  In the unfair labor practice charges filed against the employer in Care One, the union alleged that the employer ran afoul of the standard announced in Total Security by imposing discipline after the union’s certification, but before the parties entered into a CBA.  Specifically, the union alleged that the employer violated the Act by suspending and discharging employees pursuant to an established disciplinary policy without first providing the union notice and an opportunity to bargain over the discipline.

Reversing the Administrative Law Judge’s decision, the Board rejected the findings that the employer violated the Act by imposing discipline without first bargaining.  The Board held that the correct analysis for evaluating such discipline “must focus on whether an employer’s individual disciplinary action is similar in kind and degree to what the employer did in the past within the structure of established policy or practice.”  Because the employer “applied its preexisting disciplinary policy” in disciplining the employees, the employer’s imposition of discipline was consistent with the Act, even though the disciplinary decisions included the use of discretion and took place without first bargaining with the union.

The standard (re)announced in Care One also is fully consistent with the most recent significant guidance from the Board regarding employer obligations to maintain the status quo with respect to mandatory subjects of bargaining.  Citing its 2017 decision in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board in Care One “recognized that discretionary aspects of a policy or practice are as much a part of the status quo as the non-discretionary aspects.”  Accordingly, “in order to maintain the status quo, an employer must continue to make decisions materially consistent with its established policy or practice, including its use of discretion, after the certification or recognition of a union.”  By reversing the contrary standard set forth in Total Security, as well as the unworkable qualifications and exceptions to that standard, the Board’s decision in Care One serves to remove the uncertainty and conflict over bargaining obligations produced by the Board’s 2016 departure from longstanding principles regarding the duty to bargain.

The Board’s decision applies both prospectively and retroactively to “all pending cases in whatever stage,” thus providing welcome relief to all employers recently involved in the negotiation of a first contract.

The National Labor Relations Board (“Board” or “NLRB”) on Wednesday, May 13, 2020, overruled decades of convoluted Board precedent regarding “dual-marked ballots” in union representation elections – establishing a new bright line test.  A “dual-marked ballot,” to put it simply, is a ballot that has markings in or around both the “YES” and “NO” box, thus, making it difficult, if not impossible, to tell whether the employee who cast the ballot actually intended to vote for or against union representation. Indeed, a dual-marked ballot might also mean that the employee who completed the ballot actually did not want to take a position either way.   The treatment of such a single dual-marked ballot can have dramatic consequences in a close election, as was the case in Providence Health & Services.

Facts.

In Providence Health & Services, Service Employees International Union Local 49 (“Union” or “SEIU”) was seeking to organize and represent a group of employees at Providence Health & Services—Oregon (“Employer”).  In an NLRB representation election, a union must receive a majority of the valid ballots cast to be certified.  If the vote is a tie, the union loses and will not be certified as the bargaining representative.

An election took place in December 2018, which after the Regional Director’s decision regarding two controversial ballots, resulted in 384 votes for the Union, and 383 votes against union representation.  However, the Employer appealed to the Board and challenged a single ballot which was dual-marked and which the Employer argued should therefore not have been counted:

The Regional Director, citing to previous Board precedent, and in line with an administrative law judge’s recommendation, had concluded that the “smudging” along the diagonal line in the “NO” box was what he concluded to be an obvious attempt by the employee to erase the marking.  Accordingly, the Regional Director held that it was the clear intent of the employee to vote “YES.”    Consequently, for a moment in time, it looked as though the Union had won the election by a single vote.

The Regional Director’s ruling, like the ALJ’s recommendations, relied on a line of cases finding “a dual-marked ballot is void unless the voter’s intent can ‘be ascertained from other markings on the ballot (such as an attempt to erase or obliterate one mark),’” to find the smudging was intent.  Quoting TCI West, Inc., 322 NLRB 928, 928 (1997), enf. denied 145 F. 3d 1113 (9th Cir. 1998).

The Board’s New Bright-Line Rule.

However, in reviewing this case, the Board reviewed and overruled decades of complex, convoluted, and contradictory precedent on how to interpret a dual-marked ballot.  Finding “it difficult to discern any consistent approach,” the Board concluded that any “attempts to determine voter intent based on additional markings, attempted erasures, smudges, or other ostensible ‘corrections’ are impermissibly subjective.”  The Board reasoned that they themselves have no special expertise in judging such markings and thus, ultimately, each decision regarding a dual-marked ballot resorts in speculation.  Furthermore, any speculation by the Board is inconsistent with other established Board precedent directing the Board to avoid speculation regarding any such markings when deciding the validity of a ballot.

Accordingly, the Board concluded that “the Board and our stakeholders will best be served by the establishment of an objective, bright-line rule pertaining to dual-marked ballots.”  The new rule throws out decades of contradictory and speculative precedent in favor of this simple bright-line rule:

[W]here a ballot includes markings in more than one square or box, it is void. 

This new bright-line rule will be applied retroactively.

Consequently, in the case at issue, the Board voided the   ballot at issue as it included markings in more than one square, resulting in 383 votes for the union and 383 votes against representation.  As a union is required to receive a majority of the votes to be certified and therefore the union did not receive the necessary majority.  Under the Board’s one year election bar doctrine, that means that the union cannot file for another election in that unit for at least one year.

Change in Official Election Ballots.

In addition to the new bright-line rule, the Board decided to modify the official election ballot language in order to attempt to reduce or eliminate instances of dual-marked ballots.  Official election ballots currently state, among other instructions, “If you spoil this ballot, return it to the Board agent for a new one.”  The Board noted that the term “spoil,” like dual-marked ballots themselves, was not clear and could lead to confusion.

This instruction will now be replaced with a much more detailed instruction regarding the voiding of ballots:

“If you make markings inside, or anywhere around, more than one square, return your ballot to the Board Agent and ask for a new ballot.  If you submit a ballot with markings inside, or anywhere around, more than one square, your ballot will not be counted.”

Employers should take care to speak with their employees about this instruction to make sure they do not simply ignore this important language.

While the bright-line rule itself is retroactive, the Board made it clear that the change in ballot forms is only applicable “prospectively,” and that the change will be implemented as soon as possible.  Notably, it is not grounds for filing an objection if an election is held with ballots containing the old language.  Accordingly, it is even more important for employers to communicate with employees this new bright-line rule, as it may not be reflected on their ballots as of yet.

Impact.

Importantly, the new bright-line rule concerning dual-marked ballots applies retroactively, meaning that not only will it impact future elections but also elections and challenges to elections that are currently ongoing.

This new rule comes at a critical time as the Board’s Regional Offices resume conducting elections, albeit mainly by mail election ballots, previously put on hold due to the COVID-19 pandemic.  As stated by the Board, election ballots may not yet reflect this newly adopted language so employers should take care to communicate the bright-line rule to employees before they receive their ballots.  It is important that employers communicate to their employees what to do if they accidently check the wrong box, get a smudge on their ballot, or simply spill a drop of their morning coffee on their ballot: get a new ballot from the region conducting the election.

It may be tempting for employers to believe this bright-line rule will not have a substantial impact as only a small amount of ballots will be impacted by this new precedent.  However, the Employer and the Union in Providence Health Services would strongly disagree.  Employers seeking to more fully understand this bright-line rule and the impact it can have on elections, particularly during this unprecedented time in our Nation, should reach out to counsel for further guidance.

­­Amid the ever-increasing impact of the COVID-19 crisis across the country, the National Labor Relations Board (“NLRB” or “Board”) announced on Wednesday that the two-week freeze on representation elections currently in effect would end on April 3, 2020.  In the weeks leading up to the nationwide postponement of elections, which included both manual and mail ballot elections, the Board implemented an agency-wide telework policy and announced the closure of several Regional Offices.  According to the Board’s website, at least six Regional Offices remained closed as of March 30, 2020, with another 14 Regional and Subregional Offices closed to the public.

In the press release announcing the moratorium on elections, the Board stated that the two-week suspension was “necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process.”

Concerning the resumption of elections, NLRB Chairman John Ring stated on Wednesday that the Board’s “General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by Regional Directors.” Neither that announcement nor any other documents made public by the NLRB to date have explained those measures, though most observers anticipate that the NLRB will move to a greater if not exclusive reliance on employees voting by mail ballots.

In a letter to Chairman Ring the day before the NRLB announced that it would resume elections, Representative Bobby Scott (D-VA) urged the Board “to permit Regional Directors to direct elections to take place as soon as practicable if, in their discretion, the elections can safely be done, especially when considering the possibility of mail ballots.”  The announcement the Board issued the following day, however, does not require that forthcoming elections be conducted by mail ballot only, or provide any specific parameters for conducting elections as the effects of the COVID-19 crisis continue to mount.

As a practical matter, mail ballot elections appear to be the most likely manner of conducting elections in the immediate future given the growing restrictions implemented by the Federal, state, and local governments to curb the spread of COVID-19 cases.  Informally, some NLRB Regional Offices have indicated that they are preparing guidance regarding procedures for the resumption of elections, and will release such guidance once finalized.  Other Regional Offices have indicated that they are not presently scheduling any elections, even as the two-week suspension of elections concludes.   At least one Regional office has begun informing parties that the ballots will be counted via Skype conferences and not in person following the voting by mail.

Given the differing routes that Regional Offices currently appear to be taking, as well as the varying impact of the COVID-19 crisis in different areas of the country, it appears that Regional Offices will evaluate local conditions and resume elections based on pertinent circumstances.

Employers and advocates should remain up to date on the legal restrictions applicable to the areas in which workforces are located, as well as any guidance issued by Regional Offices, and be prepared to navigate the Board’s representation procedures, implement communication strategies, and monitor the election process without the in-person interactions normally accompanying election proceedings.