By: Ronald J. Kramer, Esq.

Seyfarth Synopsis:  In Weavexx, LLC the Board deferred to an arbitrator’s finding that the employer had the right to change its payday and pay cycle without first bargaining.  The bigger question is how much longer will such charges be deferred pending arbitration, and the extent to which the Board will defer to an arbitrator’s award.

The Board in a 2-1 decision reversed an ALJ and deferred to an arbitrator’s finding that an employer did not violate its collective bargaining agreement by unilaterally changing its employees’ payday and pay cycle.  Weavexx, LLC, 364 NLRB No. 141 (Nov. 2, 2016) (here).  In Weavexx the employer argued that its management rights clause gave it the ability to make the unilateral changes, and the arbitrator ultimately found that the “Company’s use of managerial discretion was proper and should not be seen as a violation of a binding past practice.”

So how did this “bread and butter” contract case get to the Board?  The arbitrator apparently did a very poor job of making it clear that he applied the contract to find the employer had the right to make the change.  The arbitrator framed the arbitration issue as whether the employer’s change violated a binding past practice.  While the arbitrator set forth the employer’s contract argument, and listed the management rights provision as one of the contract sections at issue, apparently in his analysis the arbitrator really only expressly addressed an employer’s “noncontractual inherent management prerogatives” and past practice instead of addressing how the management rights clause authorized the employer’s actions.

This, along with some confusion as to whether the arbitrator addressed both the pay cycle and payday change, was enough for the Regional Director and the ALJ to determine that deferral was not warranted under Speilberg Mfg. and Olin Corp. because the evidence failed to reflect that facts relevant to resolving the ULP were presented, considered or decided by the arbitrator.  Dissenting Chairman Pearce agreed, and focused more on arbitrator’s failure “to make any finding whatsoever” on the key issue of whether the management rights clause or other contract language authorized the employer’s unilateral actions.  The Board majority worked around the arbitrator’s failing by finding that there was enough evidence within the decision to determine that he did rely upon the management rights clause, and that the arbitrator adequately considered the ULP given that the contractual issue and evidence were factually parallel to the ULP.

There are three takeaways from this decision.  First, in any arbitration involving a deferred charge it is important to argue, address and get the arbitrator to rule on the issues and contract language, such as the management rights clause, at issue in the ULP.  Common law reserved management rights claims will not cut it.  Second, while in this case there was no agreed issue and the arbitrator just worked from the union’s position, how the issue is crafted is important.  Third, note the Regional Director, an ALJ and the Board Chairman opposed deferring to the award.  The Board and its Regions are scrutinizing deferral over contract disputes much more closely than in the past.  Not only will this make deferral more difficult, at some point the Board may opt to revise its deferral standards similar to what it did for deferring Section 8(a)(3) matters in Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014).  Deferral may be an endangered species.

 

By: Paul Galligan, Esq. & Samuel Sverdlov, Esq.

Seyfarth Synopsis: By filing a complaint against Postmates, Inc. challenging their arbitration waiver, the NLRB assumed that couriers for Postmates are employees, rather than independent contractors.

Earlier this month, the National Labor Relations Board (“NLRB”) filed a complaint and notice of hearing against Postmates, Inc. (“Postmates”) (12-CA-163079), an on-demand company, similar to Uber, that has a network of couriers delivering goods.  The complaint alleges that Postmates violated the National Labor Relations Act (“NLRA”) by requiring employee drivers to enter into arbitration agreements as a term of employment.  The complaint further alleges that Postmates interfered with the Section 7 rights of Customer Services Associates (“CSA”) by prohibiting them from discussing terms and conditions of employment.

Although the substance of the NLRB’s allegations – the challenged arbitration agreement – is interesting in and of itself (to read more on our extensive coverage of this issue, please see our articles here, here, here, here, and here), the critical importance of the NLRB’s complaint is far more subtle.

While the NLRB has made clear that misclassification of independent contractors could result in an unfair labor practice (“ULP”) (to read more on this issue, please see our articles here and here), in this case the NLRB simply assumed that Postmates’s couriers are employees, rather than independent contractors, without holding a hearing or allowing any briefing on the issue.  This is significant because the NLRB does not have jurisdiction to file complaints on behalf of independent contractors.

Outlook

The Postmates complaint should put employers in the on-demand economy (and generally, employers utilizing independent contractors) on notice that the NLRB will likely gloss over the employer’s characterization of independent contractor status, and file a ULP when it believes that workers are “employees” under the NLRA, and that a violation of the NLRA has occurred.

Accordingly, employers in the on-demand economy should: (1) make sure that their classification of couriers as independent contractors is consistent with the law; and (2) avoid having overly-broad or vaguely defined employment policies that could be interpreted to infringe on the Section 7 rights of potential employees. This “belt and suspenders” approach could help on-demand companies avoid lengthy and costly battles at the NLRB.

 

By: Michael Rybicki, Esq.

Seyfarth Summary: The relevance of the National Labor Relations Act to industries and business sectors that have not traditionally had to deal with its implications – such as hedge funds.

The New York Times recently ran on the front page of its business section a lengthy article discussing the National Labor Relation’s Board challenge to a number of provisions of an employment agreement that Bridgewater Associates, the world’s biggest hedge fund firm, requires each full-time employee to sign. Under the headline Confronting Wall Street’s Secretive Culture – N.L.R.B. Challenges Confidentiality Clauses, the article notes that the Board is challenging Bridgewater’s confidentiality, non-disparagement, and arbitration clauses and went on to state “[t]he unusual action is calling into question longstanding practices and prompting some companies to re-examine their employment agreements.”

With all deference to The Times, however, for a number of years the Board has been finding confidentiality provisions (see e.g., Target Corporation, 359 NLRB No. 103 (2013)) and non-disparagement clauses (see Dish Network Corporation, 359 NLRB No. 108 (2013)) unlawful and has steadfastly maintained, despite much criticism from the courts, that clauses restricting employees to arbitrating disputes are unlawful (D. R. Horton, Inc., 357 NLRB 184 (2012)). If anything is “unusual” – if unsurprising – it is that the Board is going after a hedge fund.

Although many employers (and some of their attorneys) think that the application of the National Labor Relations Act is limited to union-represented employees or at least limited to union or union-related activities, such as collective bargaining, union organizing, or union strikes, hand billing, picketing, or boycotts, the Act’s coverage is much broader. As the Board’s website notes:

  • The NLRA applies to most private sector employers, including manufacturers, retailers, private universities, and health care facilities.
  • Employees at union and non-union workplaces have the right to help each other by sharing information, signing petitions and seeking to improve wages and working conditions in a variety of ways.See NLRB Website: FAQ’s.

The Complaint against Bridgewater (Case Number: 01-CA-169426 (06/30/2016)) is not the first one in the financial sector. For example, as Seyfarth Attorney Ashley Laken noted, the D.C. Circuit recently upheld the Board’s finding that the confidentiality and non-disparagement provisions of Quicken Loan’s employment agreements (see our earlier blog post here) violated the Act.

Confidentiality agreements, for example, can be drafted to lawfully prohibit the disclosure of a wide variety of confidential information, see e.g., GC MEMORANDUM OM 12-31, Case 7 (pp. 17-18) (a rule by a drugstore chain prohibiting the disclosure of confidential information lawful where the rule was clearly in the context of not disclosing personal health information); see also GC MEMORANDUM OM 12-59, p. 20 [Walmart, Case 11-CA-067171] (finding lawful a rule requiring employees to maintain the confidentiality of the employer’s trade secret and confidential information where rule was sufficiently contextualized by examples of prohibited disclosures (i.e., information regarding the development of systems, processes, products, know-how and technology, internal reports, policies, procedures or other internal business-related communications) for employees to understand that it does not reach protected communications about working conditions).

It seems reasonably clear, however, that too often the implications of the NLRA for industries and sectors that have not traditionally had to deal with issues arising under the Act are not considered. Further, even where they are at least considered, frequently all that is done is to include a so-called “savings clause,” stating in effect that nothing contained in an employment agreement, handbook, or work rule, shall be construed as restricting activity protected by the National Labor Relations Act. The Board, however, routinely finds such clauses ineffective. Chipotle Services LLC d/b/a Chipotle Mexican Grill, 364 NLRB No. 72 (2016); see also ISS Facility Services, Inc., 363 NLRB No. 160 (2016).

As noted, the National Labor Relations Act applies to most private sector employers, including industries and business sectors that have not traditionally had to deal with issues arising under its provisions. However, because it provides for only compensatory damages and generally does not offer the opportunity for attorney’s fees, it has generally been ignored by the Plaintiff’s Bar. But in today’s digital age, where employees can readily become aware of the Act’s scope via social media and online content providers, the Act’s implications need to be considered by almost all private sector employers when drafting employment agreements, handbooks, and work rules –  areas into which the Board clearly is looking to expand its effective reach.

By: Jade M. Gilstrap

In the midst of what appears to be a proliferation of “micro-units,” on Tuesday, October 18, 2016, the NLRB declined to reconsider its decision to certify a unit of 14 service technicians employed by the Buena Park Honda dealership in Buena Park, California. Sonic-Buena Park H, Inc. d/b/a Buena Park Honda, 21-RC-178527.  In doing so, the Board rejected the employer’s argument that additional employees, particularly lube technicians, should be included in the unit, finding the two types of workers did not share “an overwhelming community interest,” necessitating their inclusion in the same unit.

Relying heavily on Specialty Healthcare & Rehab. Center of Mobile, 357 NLRB 934, 938 (2011), enfd. 727 F.3d 552 (6th Cir. 2013), the majority of the three-member board ruled that the petitioned-for unit of service technicians was appropriate based on an application of the “overwhelming community-of-interest” standard.  As articulated in Specialty Healthcare:

When employees or a labor organization petition for an election in a unit of employees who are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors), and the Board finds that the employees in the group share a community of interest after considering the traditional criteria, the Board will find the petitioned-for unit to be an appropriate unit, despite a contention that employees in the unit could be placed in a larger unit which would also be appropriate or even more appropriate, unless the party so contending demonstrates that employees in the larger unit share an overwhelming community of interest with those in the petitioned-for unit.

Because the facts clearly did not establish that the lube technicians shared an “overwhelming community of interest” with the service technicians, the dealership could not meet this burden. The Board noted that unlike the lube technicians, the service technicians were more skilled, paid substantially higher wages, and required to routinely update and maintain their training and skills, making them “clearly identifiable and functionally distinct.”  Accordingly, the Board held, “[i]n denying review, we find that petitioned-for employees are an appropriate unit and the Employer has not sustained its burden of establishing that any of the disputed classifications, either individually or collectively, share an overwhelming community of interest with the petitioned-for employees such that their inclusion in the unit is required.”

Although board member Philip A. Miscimarra agreed that “the interests of the service technicians [were] sufficiently distinct from the excluded employees and otherwise appropriate for inclusion in a separate unit,” he disagreed with the application of Specialty Healthcare and the “overwhelming community of interest” standard to evaluate whether the petitioned-for unit should be required to include additional employees.  Instead, Member Miscimarra argued that the Board should have applied its traditional principles, believing “bargaining unit determinations should be circumscribed and guided by industry-specific standards where applicable.”

By: Bryan Bienias, Esq.

Seyfarth Synopsis: The Office of the General Counsel for the NLRB has asked the Board to adopt a sweeping new test that will significantly broaden the protections granted to employees who engage in frequent, short-term strikes during the same labor dispute. 

In a purported effort to update existing law to meet the realities of modern labor disputes, the Office of the General Counsel for the National Labor Relations Board last week announced that it will ask the Board to adopt a new test for determining whether intermittent and partial strikes are protected under the National Labor Relations Act. The GC distributed to all regional directors and officers a 15-page model brief to be inserted into filings before the Board and ALJs laying out its new test and also urges the Board to distinguish between “partial” and “intermittent” strikes (as the terms have be used interchangeably over the years).

Under the new test, the Act would explicitly protect employees who engage in multiple short-term strikes, particularly those addressing the same labor dispute, where: “(1) they involve a complete cessation of work, and are not so brief and frequent that they are tantamount to work slowdowns; (2) they are not designed to impose permanent conditions of work, but rather are designed to exert economic pressure; and (3) the employer is made aware of the employees’ purpose in striking.” Under current Board law, workers who strike multiple times, especially in the same labor dispute, can lose the Act’s protections and face discipline or termination.

Citing the need for certainty in the face of the increasing use of intermittent strikes by non-union workforces, as well as employers’ increasing use of temporary employees, the GC’s proposed test significantly broadens the protections granted to employees who engage in intermittent and partial strikes, while providing little guidance for employers as to how existing methods for addressing strike activity could reasonably combat the disruptions and uncertainty caused by frequent, short-term strikes.

The GC notes its test “recognizes that there is a point at which intermittent strikes are so frequent and brief that they enable employees to effectively reap the benefits of a strike without assuming the attendant risks,” citing examples of a ten-minute strike every thirty minutes, or an hourly work stoppage once employees reach daily production quotas. Beyond these extreme examples, however, the GC provides little in the way of practical limitations as to how frequently employers may strike during the same labor dispute before losing the Act’s protections.  Is a 45-minute strike every day protected?  A two-day strike every week?  As of now, it’s anybody’s guess.

The GC also claims that employers are “not helpless in the face of such strikes,” having traditional strategies of permanent replacement, lockouts, subcontracting, etc. at their disposal. But the question remains how practical or effective such traditional strategies would be in the face of frequent, short-term strikes multiple times per week or per month.

While we do not know whether the Board will ultimately adopt the GC’s proposed test, employers can expect to see these arguments raised in future NLRB proceedings. In the meantime, employers should consult with counsel regarding lawful strategies for minimizing risk and potential disruptions caused by employees’ and unions’ increasing use of intermittent or partial strikes during labor disputes.

Coffin  By: Monica A. Rodriguez, Esq.

Seyfarth Synopsis: New York district court judge in Krupinski v. Laborers Eastern Region Org. Fund, No. 15-cv-00982 (S.D.N.Y. Sept. 30, 2016), grants union’s summary judgment dismissing former union organizer’s FLSA claims.  

Former union organizer of LEROF, a non-profit organization associated with the Laborers International Union of North America (“LIUNA”) sued the Union for unpaid wages under the FLSA.

Did the Union properly classify the union organizer as exempt? This was the question at issue before the court. Both the Union’s summary judgment motion and Plaintiff’s partial summary judgment motion focused on the answer to this question. The court agreed with the Union that the Union organizer’s job duties were duties of an exempt employee.

The court first reviewed Plaintiff’s primary duties. As an organizer, Plaintiff’s primary objective was to motivate, educate, and train construction workers and to convince non-union workers to join LIUNA. Plaintiff frequently worked off-site to participate in “rat and casket” actions. According to the organizer, these actions, or demonstrations, were organized to protest poor working conditions at non-unionized worksites and used inflatable rats and coffins as props.

Plaintiff argued that the physical labor in setting up the inflatable rats, constantly adjusting and maintaining the rats, and carrying and unloading the caskets rendered his duties mostly manual in nature. The court rejected his argument noting that the physical tasks were merely incidental to the primary, non-manual duty of organizing workers.

The court also found that the undisputed facts showed that plaintiff’s primary duties were to increase LIUNA’s membership and market share. Organizers were essentially the face of LIUNA to the public and non-unionized workers. The court noted that his duties, thus, mirrored several duties listed in the Secretary of Labor’s regulation as examples of exempt type of work.

The court also analyzed Plaintiff’s discretion and independent judgment on matters of significance. Plaintiff identified target workers and potential candidates for house calls during union campaigns, searched for and reported potential health code violations at non-union job sites, and varied his approach during organizing campaigns depending on the situation. The court found that Plaintiff undoubtedly exercised discretion and independent judgment when engaging in this work. Moreover, because labor union organizing campaigns are of significance to the Union, the court noted, Plaintiff’s role in these campaigns was important for determining his status as an exempt employee.

The court concluded that the Union successfully showed that its former organizer was an exempt administrative employee. As a result, the court granted the Union’s summary judgment motion burying the union organizer’s FLSA claims six feet under.

DisciplineBy: Ronald J. Kramer, Esq. & Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: The Board reaffirmed, prospectively, the Alan Ritchey doctrine requiring employers to bargain over discretionary discipline issued to newly organized employees pre-first contract and mandated prospective make-whole relief including reinstatement and back pay for future violations.

The Board in Total Security Management Illinois 1, LLC, 364 NLRB No. 106 (Aug. 26, 2016) reaffirmed its prior decision in Alan Ritchey Inc., 359 NLRB No. 40 (Dec. 14, 2012), requiring employers to bargain over discretionary discipline issued to newly organized employees prior to the execution of a first contract or a separate side letter addressing discipline. Alan Ritchey was previously invalidated by the Supreme Court’s decision in NLRB v. Noel Canning.

Considering the issue de novo, the three-member majority led by Chairman Pearce, who also served as Chairman when Alan Ritchey was issued, reiterated that employers must provide notice and an opportunity to bargain to the union before imposing discipline (with limited exceptions for minor discipline and exigent circumstances).  We previously covered the obligations under Alan Ritchey here.

The majority emphasized the importance of protecting employees’ rights during the pre-first contract phase of the bargaining relationship. Allowing the employer to exercise discretion in imposing discipline during this time would, according to the majority, “demonstrate to employees that the Act and the Board’s processes implementing it are ineffectual, and would render the union…impotent.” Total Security, 364 NLRB No. 106, slip op. at 10.

The Board found that the discharges in Total Security met the standard established in Alan Ritchey for pre-imposition bargaining and that no such bargaining took place.  The Board declined, however, to order retroactive enforcement of its decision, holding that such enforcement would constitute manifest injustice. Id. at 12.

The majority in Total Security also set forth, for the first time, the remedies available for future Alan Ritchey violations.  In addition to standard remedial relief, i.e. cease-and-desist orders, a requirement to bargain, and notice-posting, the Board opined that make-whole remedial relief, including reinstatement and back pay, would also be appropriate. Id.  Where post-violation the parties did bargain and later reached agreement on discipline, the majority indicated the back pay remedy generally would run from the date of unilateral discipline until the date of the agreement to the extent the agreement did not provide for such back pay.  An agreement providing less than full lost back pay and purporting to settle the pre-discipline bargaining violation would be subject to review under the Board’s standards for non-Board settlement agreements if challenged.  In the event the parties, post-violation, bargained in good faith to impasse over the discipline, back pay would run until the date of impasse. Id. at 13.

Such make-whole relief would, however, be subject to an employer’s affirmative defense that the discipline was “for cause” under the Act. The majority’s new “for cause” defense places the burden on the employer, during the compliance phase of the case, to show “(1) the employee engaged in misconduct, and (2) the misconduct was the reason for the suspension or discharge.” Id. at 15.

The burden of proof then shifts to the General Counsel and the charging party to challenge the employer’s showing by demonstrating, for example, disparate discipline for the same behavior or other reasons for leniency. The employer may rebut such evidence by proving that the employee would have received the same discipline regardless.  The ultimate burden of persuasion remains, at all times, with the employer.

In a 25 page dissent longer than the decision itself, Member Miscimarra asserted the majority took a “wrecking ball to eight decades of NLRA case law.” He not only addressed how the majority erred in reaffirming Alan Ritchey, but he also criticized the majority’s creation of the affirmative defense.  Member Miscimarra argued that Section 10(c) of the Act requires the General Counsel to demonstrate the absence of cause in order to find a violation rather than placing the burden on the employer to show cause in order to avoid liability.  Moreover, Member Miscimarra asserted that that cause issue must be addressed as part of the liability phase of the proceedings as opposed to the remedial phase.

The reaffirmation of Alan Ritchey is no surprise, although the provision of a back pay remedy and the new employer burden during the compliance phase to prove a “for cause” defense is.  Given the complaint against the employer here was dismissed as the ruling was prospective in nature, it likely will be some time before this new rule is actually appealed to the courts.

Moving forward, employers negotiating first contracts risk an unfair labor practice finding if they do not comply fully with Alan Ritchey’s bargaining requirements for any discipline that could even arguably be seen as discretionary.

By: Skelly Harper, Esq.

Seyfarth Synopsis: Third Circuit rejects market-participant argument, opening the door for preemption challenge to local law tying tax incentives to use of union labor.

The case before the Third Circuit, Associated Builders & Contractors v. City of Jersey City,  involves a Jersey City ordinance providing developers with tax abatements when they build projects in certain areas. Developers are eligible for the tax abatements, however, only if they enter into project labor agreements requiring their contractors and subcontractors to use union labor for the duration of the project. The PLAs required by the ordinance specify, among other things, that “there will be no strikes, lock-outs, or other similar actions,” and that the developer and the union will agree to dispute-resolution procedures. The ordinance covers projects that are funded entirely by private investment.

The legal issue before the Third Circuit was application of the “market participant doctrine.” The plaintiffs in the case argued that the ordinance was preempted by both the NLRA and ERISA. They also argued that the ordinance is barred by the dormant Commerce Clause of the U.S. Constitution. The District Court had ruled that these arguments were not cognizable, because it concluded that Jersey City acted as a market participant — and not a regulator — when enforcing the ordinance. The Third Circuit reversed and remanded.

The Third Circuit held that the market-participant doctrine did not apply because Jersey City did not have a “proprietary interest” in the privately funded projects. The Third Circuit reasoned that providing tax incentives does not transform Jersey City into an investor, owner, or financier of a project. The Third Circuit therefore directed the District Court to decide whether the ordinance was preempted or barred. The decision offered “no comment” on whether the ordinance was in fact preempted the NLRA or ERISA or barred by the dormant Commerce Clause.

The decision sets forth a potential road map for all employers — not just developers — to consider whenever confronted with local tax incentives that are only available to employers with a union contract. While the challenge was brought in this case by the developers, employers outside the construction industry may be able to pursue similar arguments. For example, the Third Circuit’s theory should encompass local laws that require hotels have a union for the hotel developer to receive a tax break

CBA  By: William P. Schurgin, Esq. & Karla E. Sanchez, Esq.

Seyfarth Synopsis: In Graymont PA, Inc. the Board majority ruled that a unionized employer cannot unilaterally change rules or policies that affect bargaining unit employees even if its collective bargaining agreement contains a broad management rights clause.

In Graymont PA, Inc., 364 NLRB No. 37 (2016), the union had represented a unit of the employer’s employees since the 1960’s.  The most recent bargaining agreement contained a management rights clause that stated that the employer retained:

the sole and exclusive rights to manage; to direct its employees; . . .  to evaluate performance, . . . to discipline and discharge for just cause, to adopt and enforce rules and regulations and policies and procedures; [and] to set and establish standards of performance for employees . . .

While the agreement was in effect, the employer announced that it was going to implement changes to its work rules, absenteeism policy, and progressive discipline policy.  These rules and policies were not a part of the agreement.  After the employer made the announcement, the union informed it that it wanted to discuss the announced changes. The employer explained to the union that although it had no obligation to bargain over the changes, it was willing to listen to the union.  The employer discussed with the union and made a few revisions to the work rules and absenteeism policy based on the union’s comments.  Nevertheless, the Board found that the employer’s changes to the work rules, absenteeism policy and progressive discipline policy constituted unlawful changes because the employer did not have the right under the agreement to make these unilateral changes.

The Board noted that for purposes of determining whether a collective bargaining agreement allows an employer to make unilateral changes, it applies the “clear and unmistakable waiver” standard.  Under Graymont PA, Inc., to constitute a clear and unmistakable waiver of a union’s right to bargain over changes in policies, procedures and/or work rules, the management rights clause must specifically refer to the types of rules/policies at issue. In other words, a broad management rights clause that provides management with the sole and exclusive right to “manage” and “direct its employees,” “evaluate performance,” “adopt and enforce rules and regulations and policies and procedures,” and “set and establish standards of performance” does not waive the right of the union, for example, to bargain over changes to an attendance rule or a progressive discipline policy. For such a waiver to be enforceable, according to the Board majority, the management rights clause must specifically refer to rules and regulations related to “discipline”  and  “attendance.”

This Graymont PA decision creates new restrictions on an employer’s ability to rely on a management rights clause to make changes to rules and/or policies without first bargaining with the union. At the same time, it opens the door for unions to file unfair labor practice charges over such changes. In order to evaluate an employer’s right to make unilateral changes in rules, regulations, handbooks or policies, every collective bargaining agreement’s management rights clause will need to be reviewed to determine how specifically it refers to the changes in question.

 

NLRB

For those of our blog followers who also use Twitter to receive some of their news, let us recommend NLRB Member Phil Miscimarra (@NLRBMiscimarra) as a great follow. Last week, Member Miscimarra recently began tweeting out new NLRB decisions in which he authored an opinion separate from the majority opinion, along with a brief description of the decision and a handy reference to the page on which his opinion commences.  By definition, this is a good clue that the decision is controversial, may be of particular importance to employers, and is ripe for challenge at the court of appeals, with Member Miscimarra doing his level best to provide a road map for a court inclined to disagree with the NLRB’s current majority.