The Senate has confirmed Peter B. Robb as the next General Counsel of the National Labor Relations Board (“NLRB” or “Board”).  Mr. Robb, a management side labor lawyer perhaps best known for his representation of the FAA during the 1981 air traffic controllers’ strike, will succeed Richard Griffith, Jr., who was appointed to his four year term by President Barrack Obama in 2013.

Although Mr. Griffin’s term concluded on October 31st, and the Senate sent Mr. Robb’s confirmation to the President for his signature, to date President Trump has not signed off, with the result that since November 1st, Deputy General Counsel Jennifer Abruzzo has been serving as Acting General Counsel.

The Board’s General Counsel “is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.” In fact, the General Counsel plays a key role in shaping policy by guiding the Board’s Regional Directors in terms of determining priorities for enforcement and shaping the legal arguments and theories that the attorneys in the Regional Offices will argue before the agencies Administrative Law Judges and the Board itself in unfair labor practice cases.  Notably, the General Counsel has the final and unreviewable decision making authority in investigations and in deciding whether a charge will be dismissed or a complaint will issue. Mr. Griffin was known as an advocate of a broad reading of the National Labor Relations Act (the “Act”) and for aggressively applying the Act’s protections to employees in non-union businesses.

It is widely expected that once Mr. Robb takes the helm in the General Counsel’s Office that he will pursue an unwinding of many of the expansive actions of his predecessor in areas such as joint-employer, social media, deferral to arbitration and enforcement of class action waivers and mandatory arbitration of disputes between unrepresented employees and their employers.

In what may be a harbinger of good things to come, the NLRB recently reversed an Administrative Law Judge’s (“ALJ”) finding that Macy’s, Inc.’s confidentiality policies unlawfully interfered with employees’ Section 7 rights.  Unlike many employer policy decisions issued by the Board in recent years, this case does not break new ground or saddle employers with new, unrealistic onuses.  It merely reinforces well-established rules regarding the use of sensitive customer information obtained from an employer’s records and actually reaffirms the right of employers to protect “information their employer lawfully may conceal.”

What is refreshing about this case, though, is what the Board, in a two-to-one decision by Chairman Miscimarra and Member McFerran, with Member Pearce dissenting, did not do.  Namely, it did not attach an excessively broad interpretation to rules that, while theoretically susceptible to such a construction, were clearly not intended to have such an overreaching effect.  In an era of Board decisions that have ostensibly transformed the Lutheran Heritage “reasonably construe” standard into a micromanagement weapon wielded against employers to invalidate commonplace personnel policies based on uber speculative constructions untethered to industrial realities, this case may mark the apex of this aggressive push and the beginning of a more rational Board jurisprudence.  The decision returned focus on the original intent of Lutheran Heritage.  That is, rules will only be held to per se violate employees’ rights under the Act if they explicitly restrict Section 7 rights and just because a rule could be interpreted that way does not mean it’s reasonable.

The Board reaffirmed that where a rule does not explicitly restrict Section 7 rights, it will only be found to violate the Act if it can be shown that “(1) employees would reasonably construe the language [of the rule] to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity, or (3) the rule has been applied to restrict the exercise of Section 7 rights.”

Board Finds That Employees Have No Right to Use Customer Data Acquired from Employer’s Records

At issue in this case were three rules confidentiality rules. One restricted the use of “Confidential Information,” which was defined to include “social security numbers or credit card numbers – in short, any information, which if known outside the Company could harm the Company or its business partners, customers or employees or allow someone to benefit from having this information before it is publicly known.”  The other two prohibited the disclosure of “personal data,” including customers’ “names, home and office contact information, social security numbers, drivers’ license number, account numbers and other similar data.”

The ALJ found that these rules unlawfully restricted employees’ Section 7 right to communicate with customers about their work-related concerns. The Board reversed the ALJ on the grounds that the rules only prohibited employees’ use or disclosure of sensitive data (i.e., customers’ social security and/or credit card numbers) or information obtained from the employer’s own confidential records. While the Board reaffirmed the proposition that “employees indisputably have a Section 7 right to concertedly appeal to their employer’s customers for their support in a labor dispute,” the Board held that this right did not usurp their employer’s right to protect and prevent the disclosure of “information their employer lawfully may conceal.” Neither of the Board’s justifications is particularly controversial – the Board has long recognized that employees have no right to use sensitive data or information drawn from the employer’s confidential records.

What is also notable, though, is that the majority rejected the much broader construction advocated by Member Pearce in his dissent, which would have expanded the scope of these rules beyond their apparent lawful parameters, because such a construction, while possible, was not reasonable.

Board Rejects Unreasonable Construction That Parses Out Certain Language from Entire Policy

First, the dissent argued that, as defined, “Confidential Information” would encompass customer contact information because such data could certainly benefit outside entities and/or its disclosure could harm the Company.  The Board majority rejected this contention on contextual grounds because the language attacked by the dissent was preceded by an exemplary list of sensitive personal and proprietary data.  These contextual elucidations, the majority reasoned, effectively precluded employees from reasonably interpreting the prohibition as embracing benign customer data such as names and addresses.  The majority emphasized that just because a rule may be susceptible to a particular construction does not make that construction reasonable.

Board Rejects Speculative Scenario Not Grounded In Evidence

Second, Member Pearce’s dissent argued that an employer cannot restrict the use of customer information maintained in files the employer designates as “confidential” because this information is likely available to all employees in the normal course of their employment duties.  The majority rejected this on two grounds.  First, they pointed out that the Act does not protect employees’ use of information drawn from an employer’s records merely because employees have access to it as part of their duties.  Second, “there is…no evidence in this case that the Respondent’s customer contact information was available to ‘all employees’ as the dissent contends, much less that it was used by them in the course of their normal employment duties…Our colleague’s unsupported speculation as to the Respondent’s ‘likely’ practices cannot substitute for evidence not in the record.”

In recent years, employers have reeled from the Board’s frequent unwillingness to acknowledge the reasonable and obvious intent of ordinary workplace rules and to instead concoct speculative scenarios out of whole cloth to justify finding such policies violative of the Act.  Chairman Miscimarra has long argued that this increasingly frequent approach contradicts the true intent of the Lutheran Heritage “reasonably construe” standard and has imposed impossible burdens on employers trying to craft lawful policies that protect their legitimate business interests.  Chairman Miscimarra has continuously advocated for the Board to repeal and replace the Lutheran Heritage standard because this standard is inherently susceptible to widely varying application and does little to promote the certainty and predictability employers need when promulgating workplace policies.  While the majority in Macy’s did not adopt Chairman Miscimarra’s proposed replacement, Member McFerran did agree to reject the ALJ’s interpretation of the rules and policies in question based on the constrained parsing and overreach that dominated the Obama Board’s application of the “reasonably construe”  standard.

With newly sworn in Member Marvin Kaplan and likely soon to be confirmed William Emanual, in September Chairman Miscimarra will have the first Republican majority of the Decade. However, with Chairman Miscimarra’s announced intention not to seek a second term, he will only have a couple of months in which to lead a newly construed Board in its move to the new standards and tests he has been advocating.

In Midwest Division-MMC, LLC, d/b/a/ Menorah Medical Center v. NLRB, the D.C. Circuit rejected the Board’s unprecedented application of Weingarten rights to voluntary meetings, by reversing the Board’s Decision that would have extended the right of employees to have union representation at meetings at which the employees’ attendance is not compelled.

Kansas state law requires hospitals to establish an internal mechanism to monitor the standard of care provided by nursing professionals.  Pursuant to this law, Menorah Medical Center (“Menorah” or “Hospital”) established a Nursing Peer Review Committee (“Committee”) to investigate alleged violations of the prevailing standard of care.  If substantiated, the Committee reports the violation to the state licensing agency, but the Committee itself does not impose discipline.  If a violation is reported, the state, not the employer, may suspend or revoke a nurse’s license.

In May 2012, two nurses received letters alleging that they had engaged in unprofessional conduct. The letters advised that the nurses could address the Committee at a hearing “if you choose,” but also gave the nurses the option to submit a written statement in lieu of a personal appearance.  Both nurses requested union representation at the Committee hearing, but the Hospital denied their requests.  Their union subsequently filed an unfair labor practice charge alleging that the Hospital violated the National Labor Relations Act (“Act”) by denying the nurses’ requests for union representation at the hearing.

The D.C. Circuit Court Finds There Is No Right to Union Representation at Voluntary Meetings

The Board found that the Hospital’s denial violated the Act because employees have a right to union representation under Weingarten in “interviews where there is a reasonable belief that the employee will be disciplined,” regardless of whether the employees’ attendance is compulsory or voluntary.  This was an overt expansion of employees’ Weingarten rights which only apply to a unionized employee’s right to representation at a mandatory meeting an employer requires them to answer potentially incriminating questions which may result in disciplinary action by the employer.

The D.C. Circuit Court, however, unanimously reversed the Board’s decision. The Circuit Court, quoting the Supreme Court’s Weingarten decision, held that an employee’s Weingarten rights are infringed only when an employer compels an employee’s attendance at an interview that might reasonably be expected to lead to discipline and denies his or her request for union representation.  Specifically, the Supreme Court in Weingarten delineated the limited representation right as:

…the employee’s individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee’s request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy.

Here, the Hospital’s letters to the nurses clearly conveyed their attendance at the hearing was voluntary and even allowed them to submit a written statement as an alternative to attending.  Accordingly, the right to union representation under Weingarten was not triggered.

The Court also rejected the Board’s finding that, after denying a request for union representation in these circumstances, the employer must discontinue the interview unless the employee voluntarily agrees to continue after the employer explains to the employee that he or she has a choice to continue the interview without a representative present or not have the interview at all.  The Court explained that the letters sent to the nurses made it clear that their attendance was voluntary, and Weingarten “contains no suggestion that the NLRA requires an employer to renew advice to an employee that her attendance at a hearing is optional.”  The Court distinguished the precedent relied upon by the Board on the ground that all the cases involved compulsory attendance at interviews.

The Concurrence Suggests Weingarten Rights Do Not Apply Outside Interviews Conducted by Employers

Notably, in a concurring opinion, Circuit Judge Kavanaugh emphasized that the majority’s opinion assumes arguendo that Weingarten rights could apply to peer review committees without deciding this threshold question.  Judge Kavanaugh explained that, were the Court to decide this threshold question, he would hold Weingarten rights do not apply in peer review committee interviews.  Rather, Weingarten rights exist “to redress the perceived imbalance of economic power between labor and management,” and therefore apply primarily in the context of disciplinary investigations conducted by the employer.  When the interview is conducted by a state-mandated peer review committee that is not part of the employer’s disciplinary process, Weingarten rights do not apply.

The DC Circuit Court, in its August 11th decision in Rhino Northwest, LLC v NLRB has found that the NLRB’s 2011 Specialty Healthcare decision revisiting the Board’s standards for determining whether a bargaining unit a union seeks to represent is appropriate, where the employer claims in excludes other classifications of employees who share a community of interest with the petitioned for employees, is supported by the National Labor Relations Act and that the “overwhelming community of interest” standard that the Board adopted in that case is entitled to deference and should be followed.

The Specialty Healthcare Holding

The NLRB’s 2011 Specialty Healthcare decision is frequently referred to as the “micro-unit” case. In Specialty Healthcare, the Board held that for an employer to establish that a unit is not appropriate and must include other classifications, the employer must prove the petitioned for unit is “truly inappropriate” and that the additional classifications the employer contends must be included in the unit share “an overwhelming community of interest” with the petitioned for classifications.   Many saw this as a contradiction to the long standing proposition that the extent of organizing or support could not be the basis for finding a group of employees to be an appropriate unit and a results driven decision by the Obama Board, intended to allow unions to gain footholds within employers’ workforces by achieving bargaining rights for small pockets of workers.

The Facts in Rhino Rigging

In Rhino, which is a concert equipment setup company, a local of IATSE, a union representing stagehands and theatrical professions, petitioned for an election in a group of “riggers” employed by the company at a location in Washington State. The employer argued that a unit of just riggers, employees who use motors to hoist and position overhead equipment at concerts and theatrical events, was not an appropriate unit, and that the “overwhelming community of interest” standard adopted by the Board in Specialty Healthcare was inconsistent with the National Labor Relations Act (NLRA or Act”) and that in any case, that the riggers shared an overwhelming community of interest with the other classifications they worked with– camera, lighting, and forklift workers – and that a unit composed only of riggers was “truly inappropriate.” The Regional Director disagreed and directed an election in the rigger unit, the union won the election, and Rhino refused to bargain, in order to test the certification and, ultimately have its arguments considered by the D.C. Circuit.

The DC Circuit’s Rhino Rigging Decision

In short, the DC Circuit rejected all of Rhino Riggings’ arguments, finding that “Because a legitimate basis exists for excluding non-riggers from the bargaining unit,” it would sustain the Board’s order, in which it held that the company was obligated to bargain with the union for the unit of riggers.

As the Court pointed out, under the Board’s unit determination case law, “two considerations determine the prima facie appropriateness of a proposed unit.”

First, the employees must be “readily identifiable as a group” based on factors such as “job classifications, departments, functions work locations [or] skills. Second, the petitioned-for employees must share a “community of interest.” The Board “weigh[s] all relevant factors on a case-by-case basis” to determine whether a set of employees are sufficiently alike to constitute an appropriate bargaining unit.

Noting that there can in many circumstances be more than one appropriate bargaining unit, the Court reaffirmed that a unit need not be the most appropriate unit, and that under the Board’s overwhelming community of interest standard, for an employer to successfully challenge a petition seeking a unit it considers “underinclusive,” it must demonstrated that the proposed unit is “truly inappropriate” because the excluded employees share an overwhelming community of interest under the standard adopted in Specialty Healthcare.

The Court rejected Rhino’s argument that the “overwhelming community of interest” standard “runs afoul of the Act,” and its contention that even under that standard, the riggers shared an overwhelming community of interest with the other classifications.

What Happens Next?

With the DC Circuit’s decision, a total of eight Circuit Courts have rejected claims that the Board exceeded its authority in Specialty Healthcare and that the standards adopted in it are not supported by the Act.

For employers that were holding out hope that the DC Circuit was going to turn the tide on Specialty Healthcare and reject or redefine the “overwhelming community of interest” standard, the Rhino decision is a setback. It is certainly possible that a Court in another circuit which has not yet passed on Specialty Healthcare could still find that the test is not supported by the Act.

That said, at this point, the most likely way that change will come will be from the Board itself, once a Republican majority is in place, which should be this year. On May 10, NLRB Chairman Miscimarra issued a dissent in Cristal USA, Inc., in which he explicitly articulated his belief that “Specialty Healthcare was wrongly decided.” He went on to note that the unit in certified in Cristal was one he did not believe was an appropriate unit, and that this was concerning to him because it “promotes instability by creating a fractured or fragmented unit.”

As the Board moves to a new Republican majority, there is every reason to believe that the holdings in Specialty Healthcare will be reexamined from the point of view articulated in the Chairman’s dissent in Cristal and other cases.

When: Thursday, September 14, 2017 8:00 a.m. – 4:30 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

  • Immigration
  • Global Executive Compensation
  • Artificial Intelligence
  • Internal Cyber Threats
  • Pay Equity
  • People Analytics in Hiring
  • Gig Economy
  • Wage and Hour
  • Paid and Unpaid Leave
  • Trade Secret Misappropriation
  • Ethics

We will start the day with two morning Plenary Sessions. The first session is kicked off with Philip A. Miscimarra, Chairman of the National Labor Relations Board (NLRB).

We are thrilled to welcome back speakers from the U.S. Chamber of Commerce. Marc Freedman and Katie Mahoney will speak on the latest policy developments in Washington, D.C., that impact employers nationwide during the second plenary session.

Morning and afternoon breakout workshop sessions are being led by attorneys at Epstein Becker Green – including some contributors to this blog! Commissioner of the Equal Employment Opportunity Commission, Chai R. Feldblum, will be making remarks in the afternoon before attendees break into their afternoon workshops. We are also looking forward to hearing from our keynote speaker, Bret Baier, Chief Political Anchor of FOX News Channel and Anchor of Special Report with Bret Baier.

View the full briefing agenda and workshop descriptions here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

On Wednesday, the U.S. Senate confirmed Marvin Kaplan, a former Occupational Safety and Health Review Commission lawyer, to fill one of the two open seats on the National Labor Relations Board, moving the agency a step closer to a Republican majority. Kaplan was confirmed on a 50-48 party-line vote by the GOP-controlled Senate.

The Senate has yet to schedule a vote for President Trump’s second nominee for the Board, William Emanuel, a long time management-side labor and employment lawyer. The Senate is expected to vote for cloture on Emanuel’s nomination after the August recess. The cloture vote kicks off a 30-hour period of debate. A final confirmation vote will then be scheduled.

The delay in moving forward on Emanuel’s nomination is the result of several Democrats stalling by raising partisan concerns that Emanuel’s history as a management-side lawyer somehow creates a conflict of interest, notwithstanding their prior support of Board nominees who have had lifelong careers as attorneys for unions, and indeed in numerous other instances, attorneys who represented employers. For example, current Member Mark Gaston Peace was longtime union lawyer and the current NLRB General Counsel Richard Griffin, Jr. was the General Counsel of the International Union of the Operating Engineers and a member of the board of directors of the AFL-CIO Lawyers Coordinating Committee.

Emanuel is expected to be confirmed in September despite the delays.

As discussed in our earlier advisory, if the nomination of Emanuel is confirmed by the Senate, which seems likely as of now, the NLRB will not only have its first Republican majority in nine years, it will return to full strength at five members. As cases come before the Board for its consideration, the NLRB will likely reconsider many of the decisions of the Democratic majority Obama Board. However, as we have noted, NLRB General Counsel is expected to serve out his four year term and remain in that critical post, in which he decides in many respects, which issues are litigated and presented to the Board, through November 3, 2017.

As we noted in our earlier blog, the Board is likely to consider a number of significant legal issues once the final vacancy is filled, including the NLRB’s standards for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA”), the Board’s standards for determining what are appropriate units for collective bargaining including a review of the so-called “mircro-units” approved by the Obama Board, the status graduate students and research assistants as employees under the NLRA with the right to collective bargaining, and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

Since the National Labor Relations Board’s (“NLRB” or the “Board”) 2015 decision in Browning-Ferris Industries, 362 NLRB No. 186, in which it adopted a new, far less stringent test for determining joint-employer status under the National Labor Relations Act (“NLRA”),  employers have been left wondering whether they may be held to be a joint employer of temporary or contract workers that they retain through staffing and temporary agencies.

These concerns have been echoed by employers in other contexts as other agencies, such as the United States Department of Labor (“DOL”) and the Equal Employment Opportunity have taken similar positions, seeking to expand the concept of joint employer with respect to statutes and regulations they enforce. Notably, both the DOL and the EEOC filed amicus briefs in support of the NLRB’s position with the D.C. Circuit Court of Appeals, which is considering whether the NLRB exceeded its statutory authority in Browning-Ferris.

While the loosened standards for determining joint employment remain under consideration by the courts, members of Congress are now seeking to use the power of the purse strings to force the NLRB to discontinue its use of the relaxed standards it adopted in Browning-FerrisLegislation considered yesterday by House Republicans would do away with this expansion of joint employer liability and provide much needed clarity for employers on this issue.

What is the NLRB’s Browning-Ferris Standard for Finding Joint-Employer Status?

The Browning-Ferris decision expanded the definition of joint-employer to hold that if an employer, referred to as the primary employer, merely possesses, but does not exercise, the right or ability to directly or indirectly codetermine the terms and condition of employment of the employees of another employer, referred to as the secondary employer, the primary employer will be held to be the joint-employer of the secondary employer’s employees.

This holding impacts a wide range of workers, such as employees of business arrangements including the use of contractors, retention of personnel through staffing agencies and temporary employment services, and, if the “primary employer is a franchisor, personnel employed by the franchisor’s franchisees. As the Board pointed out when it decided Browning-Ferris, in its view “the current economic landscape,” which includes some 2.87 million people employed by temporary agencies, warrants a “refined” standard for assessing joint-employer status. As the majority put it: “If the current joint-employer standard is narrower than statutorily necessary, and if joint-employment arrangements are increasing, the risk is increased that the Board is failing what the Supreme Court has described as the Board’s ‘responsibility to adapt the Act to the changing patterns of industrial life.’”

While the National Labor Relations Board’s ruling in Browning-Ferris is now before the United States Court of Appeals for the District of Columbia Circuit, where the court has been asked to find that the NLRB’s test is not supported by the terms of the NLRA or the common law definition of employer, which is an element of the Browning-Ferris standard itself, recent activity from House Republicans may result in legislative action establishing a new, far narrower standard for determining joint-employer status.

Congress Seeks to Use the Appropriation Process to Force the Board to Discard Browning-Ferris’s Indirect Control Standard

House Republicans have introduced new language in a draft spending bill – that among other things, would set the NLRB’s appropriation for 2018 – to direct the Board to set aside what many in the business community find to be one of the most objectionable parts of Browning-Ferris.

The House Education and Workforce Committee held a hearing on Wednesday, July 12, 2017 to discuss the barriers to job and business growth created by the “indirect control” standard of joint employer liability. Small business owners and other employer representatives testified that the joint employer standard threatens their ability to expand, and encouraged the committee to introduce legislation that would define employees as those workers that the employer has direct or actual control over.

On Thursday, July 13, 2017, the House Appropriations Committee on Labor, Health and Human Services, and Education voted along strict party lines to approve a markup of their draft spending bill for FY 2018, which would prohibit the NLRB from using the “indirect control” standard in making joint employer determinations and would require the Board to revert to the “direct control” standard. The Appropriations Committee describes the legislation in its press release and on its website as including

two policy provisions to stop the NLRB’s harmful anti-business regulations. The provisions include: A provision that prohibits the NLRB from applying its revised “joint-employer” standard in new cases and proceedings; A provision that prevents the NLRB from exercising jurisdiction over Tribal governments.

This provision, along with the Committee’s proposal to reduce the NLRB’s budget by $25 million (from $274 million to $249 million) will face strong opposition from the Democratic minority, organized labor, unions, and employee lobbying groups. Of course at this point it is not at all clear whether in fact there will actually be a budget for the new fiscal year or, instead, Congress will again adopt a continuing resolution to keep the government running.

What Should Employers Do Now?

Employers and their representatives should of course continue to pay close attention to the budget process and other legislative action, while waiting for Congress to take action on the President’s nominees to the two vacant seats on the NLRB.   There is every reason to believe, assuming Willian Emanuel and Marvin Kaplan are confirmed and take their seats on the Board, that they, like Chairman Philip Miscimarra, who wrote a vigorous dissent in Browning-Ferris, will share the Chairman’s belief that the standard adopted in that case was incorrect and should be set aside. At this time, however, it would be nothing more than speculation to predict when the new Board majority will have an actual case before it in which these issues are present.

In the meantime, employers are advised to review the full range of their operations and personnel decisions, including their use of contingent and temporary personnel supplied by staffing and similar agencies to assess their vulnerability to such action and to determine what steps they make take to better position themselves for the challenges that are surely coming.

Equally critical, employers should carefully evaluate their relationships with suppliers, licensees, and others with which they do business to ensure that their relationships, and the agreements, both written and verbal, governing those relationships do not create additional and avoidable risks.

This post was written with assistance from Sean Winker, a 2017 Summer Associate at Epstein Becker Green.

The President earlier this week announced the nomination of Marvin Kaplan, who currently serves as counsel at the Occupational Safety and Health Commission, to serve as a Member of the National Labor Relations Board. Mr. Kaplan is a Republican and once confirmed, his taking a seat on the Board will be an important step in the move towards a more employer-friendly Republican majority that can be expected to reconsider many of the decisions of the Democratic majority Obama Board. Mr. Kaplan’s nomination is for the seat most recently held by Member Harry Johnson, and will be for a full five year term continuing into 2022.

The nomination is now before the Senate Committee on Health, Education, Labor & Pensions, where it is expected to be advanced. Committee Chairman Lamar Alexander of Tennessee expressed his support, stating “Marvin Kaplan has the qualifications to be an effective member of the National Labor Relations Board. Once Mr. Kaplan’s nomination paperwork is received, the Senate labor committee will move promptly to consider his nomination.” It is not yet known however when that will occur.

As we reported last month, the President is also expected to nominate management side labor lawyer William Emanuel for the other vacant seat on the Board.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act (“NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face-to-face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in violation of the National Labor Relations Act (“NLRA” or the “Act”),  and thus could support a finding that the employer committed an unfair labor practice (“ULP”).  The Board noted that the employer had offered “no reason why the Board should provide a safe harbor for coercive employer messages via text messages.”

The Act’s Protection of Employee Activity

The Act provides all employees with the right to engage or refrain from engaging in protected, concerted activity, that is activity concerning their terms and conditions of employment, including but not limited to the right to join and be represented by unions and to engage in collective bargaining with their employers. It is well established that these rights, which are provided for in Section 7 of the Act, protect and apply to employees in both unionized and non-union settings.  The Act prohibits both employers and unions from engaging in conduct that interferes with employees in their exercise of their Section 7 rights.  Under Section 8(a)(1) of the Act, it is an ULP for an employer or its agents to restrain or coerce employees in the exercise of their Section 7 rights.  For example, it is unlawful for an employer to interrogate an employee about his or her support for a union or that of other employees.  It is a violation of Section 8(a)(3) of the Act for an employer to terminate, discipline or otherwise take action against an employee because of his or her exercise of Section 7 rights.

The case in question arose in the context of a union organizing campaign by Laborers Union Local 79 among employees of RHCG Safety Corp. (also known as Redhook Construction Group). The union had petitioned the NLRB for a representation election, in which employees were to vote on whether they wanted Local 79 to become their bargaining representative. During the campaign, an employee texted his supervisor, to inquire about returning to work after an approved leave of absence. The supervisor replied by text, “U working for Redhook or u working in the union?” According to the unanimous Board decision, in which Chairman Miscimarra joined with Members Pearce and McFerran, an employee would understand the supervisor’s message to strongly suggest that working for Redhook was incompatible with supporting or working in the union.  The Board therefore agreed with the Administrative Law Judge (“ALJ”) who had conducted the ULP hearing, that the text message constituted an unlawful interrogation and violated Section 8(a)(1) of the Act.

In its exceptions to the ALJ’s decision Redhook argued to the Board that a text message could not constitute an unlawful interrogation, but according to the Board’s decision, Redhook failed to offer any reason to support its position that a text message could not support a finding of an unlawful interrogation.  The Board rejected Redhook’s contention, finding “an unlawful interrogation need not be face-to-face.”   The Board also rejected the argument that the text message at issue was inadmissible at the ULP hearing because the screenshot of the text offered by Counsel for the General Counsel did not include the entire communication between the employee and his supervisor.  The Board reasoned that the Federal Rules of Evidence permit introduction of only a part of a writing, and there was nothing in the record to suggest the text message at issue was incomplete or that the “missing” text messages could have negated the coercive nature of the “are-you-for-the union” inquiry.

What Should Employers Do Now?

The Board’s decision highlights the need for employers to carefully consider how to communicate with employees in the ordinary course of business and during an organizing campaign. Given the issues workplace texting presents for employers, it is advisable for employers to review their communication policies to make clear what methods of communication are allowed in the workplace.  Employers should also review their record retention policies to make sure that all permissible mediums of communication are covered by the policy.  Texting is a casual form of communication. To the extent employers permit text messaging among employees, it may also be necessary for employers to remind employees that text messages are workplace conversations, and the dos and don’ts applicable to face-to-face meetings and telephone calls apply equally to text messages.  Employers should also pay even greater attention to all forms of communications, both formal and informal, and by the company as well as by supervisors and managers whose actions and statements can be attributed to the employer, in the presence of organizing or other union activity.

According to news reports, the Trump administration has submitted Marvin Kaplan and William Emanuel for FBI background checks, and it plans to nominate them by June to fill a pair of vacancies at the National Labor Relations Board (“NLRB”).

The administration hopes to have the new members confirmed by the Senate before the August recess.

Kaplan is currently counsel to the commissioner of the independent Occupational Safety and Health Review Commission. He previously served as the Republican workforce policy counsel for the House Education and the Workforce Committee.

Emanuel is a shareholder at the management firm Littler Mendelson PC in Los Angeles. He has represented business groups seeking to invalidate state laws that his clients say allow unions to trespass on their property.

The five-seat board currently only has three members: Chairman Philip A. Miscimarra (R) and Members Mark Gaston Pearce (D) and Lauren McFerran (D). The vacant seats are reserved for Republicans. The Board is generally composed of three Members of the President’s party and two from the other party.

If President Trump’s nominees are confirmed by the Senate, the NLRB will have its first Republican majority in nine years.

As discussed in our earlier advisory, the board is likely to consider a number of significant legal issues once the vacancies are filled, including the NLRB’s test for determining whether joint employer relationships exist, the standards for evaluating whether handbooks and work rules interfere with employees’ rights under the National Labor Relations Act “(NLRA”), appropriate units for collective bargaining, the question of whether graduate students and research assistants are employees under the NLRA with the right to collective bargaining and a host of other decisions from the past eight years that more expansively interpreted the NLRA.

While this will ultimately be a welcome change to employers, for those with cases pending the current union leaning majority may still have several months to issue Obama-era type decisions.