By: Ashley K. Cano and John P. Phillips

Seyfarth Synopsis: Last week, the NLRB held in a 2-1 decision that an employer’s rules restricting certain types of employee communications on social media were lawful under the NLRA.  However, the Board panel was sharply divided between its Republican majority and Lauren McFerran, its sole Democratic member.  In a strongly worded dissent, Member McFerran took issue with the ruling, signaling that this pro-employer stance may be on the NLRB’s chopping block once a Democratic majority is installed under the Biden Administration.  

For many years, the direction of the National Labor Relations Board has sharply oscillated depending on which political party has comprised the majority of its Members, and the divide between Republican and Democratic Board Members has been especially sharp in cases involving employer rules and policies.  Under the Obama Administration, the Board found that many common workplace policies were unlawful under the National Labor Relations Act because employees might “reasonably construe” them to prohibit protected concerted activity under Section 7 of the NLRA.

For example, the Obama Board held that policies requiring employees not to engage in conduct that impedes “harmonious interactions or relationships” or prohibiting “abusive or threatening language to anyone on company premises” violated the Act.  But when the make-up of the Board shifted following President Trump’s inauguration, the Board overruled the “reasonably construe” standard and adopted a standard aimed at striking a balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer’s legitimate justifications associated with the rule.

Last week, the Board issued another employer-friendly decision that reinforced its current standard and provided clarity that a number of provisions common to social media policies comport with the Act. However, the decision was reached over the strong dissent of the Board’s sole Democratic Member, and her dissent is a harbinger for expected change in Board decisions and policies following President-Elect Biden’s swearing-in.

The Board’s Decision

On January 4, 2021, in Medic Ambulance Service, Inc., 370 NLRB No. 65, the NLRB found that provisions in an employer’s social media policy that restricted employee communications on social media were lawful under the Act.  The provisions at issue prohibited employees from engaging in “inappropriate communications,” disclosing confidential information, using the employer’s name to denigrate or disparage causes or people, and posting photos of coworkers.  The Medic Ambulance decision was issued by NLRB Chairman John Ring and Member Marvin Kaplan, both appointees of President Donald Trump, with Member Lauren McFerran, the lone Democratic-appointed Member presently on the NLRB, dissenting.

The Board’s ruling adopted an NLRB administrative law judge’s findings that the employer violated the NLRA by maintaining rules that prohibited conducting personal business on company time or property and soliciting or distributing literature during working hours, but reversed the ALJ’s findings that the employer’s social media policy violated the Act.  The Board also reversed the ALJ’s finding that the employer unlawfully maintained rules prohibiting the sharing of employee compensation information and the use of social media to disparage the employer or others.

In reaching its decision, the Board majority pointed to the Board’s 2017 decision in Boeing Co., 365 NLRB No. 154 (2017), which rewrote the framework for assessing the legality of employer rules.  In that decision, the Trump era Board held that when evaluating a facially neutral rule or policy that would potentially interfere with the exercise of NLRA rights, the Board will balance the employer’s legitimate business justifications against the extent to which the rule, viewed from the perspective of reasonable employees, interferes with employee rights under the Act.  Using that framework, the Board majority found that the six challenged rules were lawful:

  • Regarding the rule prohibiting “inappropriate communications,” the Board majority found that an objectively reasonable employee would not read that prohibition in isolation, but would instead consider it in the context of the guidelines that followed, all of which were lawful. As a result, the prohibition did not violate the Act.
  • Regarding the rule prohibiting disclosure of confidential or proprietary information about the company or coworkers, the Board majority found that an objectively reasonable employee would not interpret the rule as potentially interfering with the exercise of NLRA-protected rights. The majority reasoned that the rule referenced copyrighted or trademarked information and trade secrets in the very next sentence, and it did not specifically reference employees’ contact information, wages, or other terms and conditions of employment.
  • Regarding the rule prohibiting employees from using the company’s name or logo to denigrate or otherwise comment on any opinion, cause, or person, the Board majority found that reading that together with the employer’s guideline directing employees to make it clear that their views expressed in social media were theirs alone, the prohibition was lawful. The majority reasoned that an objectively reasonable employee would understand the prohibition to be aimed at preventing employees from speaking on behalf of the company, rather than prohibiting them from referring to the company by name in a post critical of the company’s terms and conditions of employment.
  • Regarding the rules prohibiting employees from posting photos of coworkers without their consent and from posting pictures of company-owned equipment or other employees without obtaining written permission, the Board majority reasoned that read in their totality, the rules strongly implied that their purpose was to protect the company’s confidentiality interests and employees’ privacy interests. As a result, an objectively reasonable employee would not read the rules as prohibiting NLRA-protected activity.
  • Regarding the rule prohibiting employees from giving out information on current or former employee compensation, the Board majority reasoned that it was apparent the rule was intended to apply only when someone telephoned the company seeking information about a particular employee. As a result, objectively reasonable employees would understand the policy in that light, not as restricting their right to discuss their wages with each other or to disclose them to a union.
  • Regarding the rule prohibiting employees from using social media to disparage the company, its associates, customers, vendors, business practices, or patients, the Board majority found it was lawful because the employer had a legitimate justification in prohibiting its employees from disparaging it or its products to its customers and the public, and this justification outweighed the rule’s potential to interfere with employees’ exercise of NLRA-protected rights. In reaching this conclusion, the Board majority found it notable that the rule did not expressly restrict employee communications with other employees.

The Dissent

In her strongly worded dissent, Member McFerran said the Boeing decision and its progeny represent “a dramatic pivot” by the Board, and that the Board now “routinely allows employers to adopt broad work rules that threaten labor law rights.”  In her view, all six of the work rules upheld by the Board majority should have been found unlawful.

Member McFerran wrote that the majority’s decision illustrated how “eager” the Board majority is to uphold employer rules, and how little weight it gives to the rights protected by the NLRA.  She also clearly conveyed her belief that the Boeing decision and the rulings that have built on it were wrongly decided.

Takeaway for Employers

Although the Medic Ambulance decision is certainly a positive for employers, they may not want to rush to modify their workplace rules and policies in response.  As it currently stands, there are three Republican Members of the NLRB (Ring, Kaplan, and Emanuel), one Democratic Member (McFerran), and one open seat.  Employers can expect the open seat to be filled with a Democrat following Biden’s swearing-in as President, and for Emanuel’s seat to be filled with another Democrat following the expiration of his term in August 2021.  Once the Board Members flip to a Democratic majority, it would not be at all surprising for this decision, Boeing, and its progeny to be on the NLRB’s chopping block, and for the NLRB to return to the more restrictive legal framework for assessing the legality of employer rules and policies that was in place during the Obama Administration.

Indeed, employers can reasonably expect a wholesale change in approach at the NLRB, possibly beginning as soon as late 2021.  In addition to an anticipated overruling of Boeing and its progeny, employers can expect a new Democratic Board majority to take on issues such as joint employment, disciplinary standards, deferral, access to employer email systems, confidentiality in investigations, dues checkoff, “micro unit” bargaining, successors, withdrawal of recognition, and access to property, among many others.  In short, employers should plan for a much more union-friendly and activist NLRB in the coming years, and a Board that will likely examine and revisit many of the Trump era decisions that have issued over the last four years.

Employers should carefully measure and adapt their policies to account for another swing in the law, as well as the risks they may be taking,  In doing so, the attorneys of our Labor Management Relations Practice Group are here to assist you.

By: Howard M. Wexler and Samuel Rubinstein

Seyfarth Synopsis: On December 31, Governor Cuomo signed the Healthy Terminals Act, which among other things, grants local governments the authority to set prevailing wages and overtime rates for covered airport workers.  Starting September 1, 2021, covered airport employers must pay a covered airport worker the prevailing wage, as set by the comptroller of a city.  Due to the Port Authority of New York and New Jersey’s status as a bi-state entity, there are some questions as to whether the Healthy Terminals Act would apply in the absence of a corresponding New Jersey law.

Introduction

On July 22, 2020, after a year of sitting in committee, Senate Bill S6266D (also known as the Healthy Terminals Act) passed in both the New York State Senate and Assembly.  The purported impetus behind the Act was the high number of uninsured airport workers.  Months after its passage, on December 31, Governor Cuomo signed the Act, which went into effect the very next day.

Prevailing Wage

As previously reported, worker groups sought to have a prevailing wage for covered airport workers.  Now that the Governor signed the Act, the “fiscal officer,” usually the comptroller of a city, will determine the prevailing wage every September 1st beginning in 2021 “for the various classes of covered airport workers in the locality.”  “Wage” includes the “basic hourly cash rate of pay” and a supplemental benefits rate for fringe benefits, including “medical or hospital care, pensions or retirement or death compensation for injuries or illness resulting from occupational activity, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, and other bona fide fringe benefits not otherwise required by federal, state, or local law to be provided by [the] covered airport employer.”  The obligation to pay prevailing supplements may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under the fiscal officer’s rules and regulations.  At this time, there are no rules and regulations posted, but as we inch closer to September 1, we expect the fiscal officer to promulgate them.

Overtime Rates

The bill amends the existing Prevailing Wage for Building Service Employees law to include “covered airport employers” and “covered airport workers.”  (For more information on the vague definitions of “covered airport employers,” “covered airport workers,” and excluded employees, see our prior alert).  Pursuant to this amendment, covered airport workers will be entitled to overtime at a rate not less than one-and-one-half times the prevailing basic cash hourly rate for work of more than eight hours in any one day or more than forty hours in any workweek.  Currently, New York does not specify a daily overtime limit for most employees, but this new Act creates a daily overtime limit for covered airport workers.

Legal Issues

One major question is whether the State of New York is able to unilaterally impose these requirements.  Unlike other airports across the nation, the Port Authority of New York and New Jersey is a bi-state agency.  To affect the internal operations of the Port Authority, New York cannot unilaterally impose requirements without New Jersey passing a similar law.  As for the external operations of the Port Authority, New York or New Jersey can unilaterally impose requirements.  A major debate is whether the Act affects the internal or the external operations of the Port Authority.

Another wrinkle is that the Act does not impose requirements directly on the Port Authority, but on lessees, permittees, and contractors operating under the jurisdiction of the Port Authority of New York and New Jersey within the state.  There have been only a handful of cases analyzing this wrinkle, however, and further litigation is expected given the passage of this new law.

If New Jersey joins New York and enacts its own version of the Healthy Terminals Act, then the above jurisdictional question would likely become moot.  However, at the time of this writing, the New Jersey version of the Healthy Terminals Act is still in committee.

Employer Takeaways

It is imperative for employers with New York City-based airport operations to consider how this Act will impact them.  For now, employers must keep a close eye on when the fiscal officer will release the rules and regulations, and what the prevailing wage rate will be.  Employers should reach out to the authors of this Alert or their Seyfarth contact to discuss compliance questions or possible defenses to coverage of this Act.

By: Molly Gabel and John L. Telford

Seyfarth Synopsis: Many employers have been dealing with threats of COVID-19 related work stoppages over the past several months.  Whether such strike activity is subject to no-strike clauses under the National Labor Relations Act or to mandatory bargaining and dispute resolution procedures under the Railway Labor Act has been a question on unionized employers’ minds.  On December 23, a federal district court answered that question affirmatively—at least under the RLA—issuing a temporary restraining order against the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters (BMWED) for a threatened strike when Union Pacific Railroad Company (Union Pacific) refused to agree to the Union’s COVID-19 related demands.

Union Pacific and the BMWED began Section 6 bargaining under the RLA in November 2019.  BMWED served its Section 6 notice for increases in pay and additional paid time-off, among other things, on November 4, 2019.  The parties currently remain in bargaining, on a national handling-level, and have not yet invoked National Mediation Board services.

The Company implemented extensive COVID-19 safety protocols at the workplace, following CDC guidelines.  The railroad also granted its employees enhanced benefits providing 14 days of paid leave for those employees who were directed to quarantine due to workplace exposure to COVID-19.  The BMWED, however, demanded more.  Because Union Pacific had not ceded to all of its demands, the BMWED wrote to Union Pacific on December 17, 2020, stating that the Union “will declare a health and safety emergency because of the imminent threat to its members of serious injury or death, and will call for a cessation of work if UP does not take the necessary corrective actions.”

Specifically, BMWED demanded that: (1) Union Pacific pay employees absent from work for any COVID-19 related reason; (2) the Company provide access to COVID-19 testing on the job site and on Union Pacific time; (3) Union Pacific provide for temperature checks and if any employee’s temperature exceeded 100.4 degrees, the employee be prohibited from work until obtaining a negative COVID-19 test and that the employee be paid for work time missed; (4) any employee exposed to a person with COVID-19 in the workplace quarantine for at least 14 days, obtain a negative COVID-19 test before returning to work, and receive pay for missed work; (5) Union Pacific provide specific PPE to employees, not require employees to use a locker room, vehicle, or equipment that had not been sanitized within the last eight hours, and pay employees unable to work due to lack of the demanded PPE or sanitization; and (6) the Company require a six-feet social distancing rule under most circumstances.

Union Pacific filed suit in the United States District Court of Nebraska on December 17, 2020 to enjoin the threatened strike, seeking a temporary restraining order and declarative and injunctive relief.  On December 23, 2020, the Court granted the Company’s motion for a temporary restraining order.  See Union Pacific R.R. Co. v. Brotherhood of Maint. of Way Employees Div. of the Int’l Bhd. of Teamsters, Case No. 8:20-cv-516 (D.Neb. Dec. 23, 2020), 2020 WL 7443217.

The Company argued any work stoppage would violate Sections 2 and 6 of the RLA because BMWED was not exerting every reasonable effort to make and maintain its collective bargaining agreement and had not exhausted procedures before the NMB.  While the NLRA does not include this statutory prohibition of striking in support of contract changes, many NLRA-covered employers have contracted with their respective unions for this protection with effective no-strike clauses in their CBAs.

In support of its motion, Union Pacific presented evidence showing that a strike would impact the transport of goods to critical industries and cause the Company severe and irreparable financial loss.  Union Pacific also presented evidence of its extensive COVID-19 safety protocols and testimony from its Chief Medical Officer regarding the effectiveness of those measures.

The Union argued that the threatened job action constituted a protected refusal to work under the Federal Railroad Safety Act (FRSA) and that, under FRSA, a carrier “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee . . . for refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee’s duties.”  Although different, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21) and Section 502 of the Labor Management Relations Act (LMRA) have corollaries to FRSA for air carriers and NLRA employers, respectively, with respect to pandemic-related refusals to work.

The Court agreed with Union Pacific, finding that BMWED would violate that RLA if it engaged in the work stoppage and that the FRSA did not give the Union a free pass to engage in  strike-related activity.  Notably, the Court stated that even if FRSA could be read to apply to strikes, “the pandemic is not a work-specific safety concern for the BMWED employees under FRSA.  Instead, the pandemic is unfortunately, a worldwide and widespread problem confronting not just the BMWED employees, but individuals of all walks of life.  Thus, it does not constitute a condition ‘related to the performance of employee’s duties’ for purposes of the FRSA.”  The Court went on to say that, because Union Pacific had implemented certain safety measures that complied with CDC guidance, “a reasonable individual under the circumstances would not conclude that there is ‘an imminent danger of death or serious injury’ presented by the current situation.”

After considering the Norris-LaGuardia Act’s procedural requirements concerning labor dispute injunctions and the Eighth Circuit’s injunctive relief standards, the Court ruled that Union Pacific had met its burden to temporarily restrain its employees from striking.  Injunction proceedings on the merits will follow.

The decision provides guidance to railroads that, at least under similar circumstances, unions may not encourage employees to walk off the job in support of COVID-19 related demands absent the complete exhaustion of mandatory bargaining procedures under the RLA.  It provides the same guidance to airlines, provided that a court would treat a AIR21 defense the same way this Court treated the FRSA defense.  It also offers at least a roadmap on how NLRA employers might be able to enforce their no-strike clauses in the face of LMRA Section 502 concerns.

Authors:          Glenn J. Smith and Matthew A. Sloan

On April 1, 2020, after a temporary suspension of elections, the National Labor Relations Board announced that the processing of NLRB-conducted elections would resume again. Since about then, an unprecedented 90% of representation elections conducted have been ordered by Regional directors to be conducted by mail due to the pandemic. This is despite the Board’s existing precedent strongly favoring in-person ballot elections.

After repeated challenges to Regional Directors’ mail-ballot directives, the Board recently issued guidelines for Regional Directors to consider when deciding whether an election should be conducted by mail ballot or in-person (manual) ballot. These guidelines are described in the Board’s November 9, 2020 opinion, Aspirus Keweenaw, 370 NLRB No. 45 (2020). In that case, the employer, an acute-care hospital located in the Upper Peninsula of Michigan, requested a manual ballot election based in part on the low level of COVID-19 cases in the area and its willingness to comply with the manual election protocols established in GC Memo 20-10. Instead, the Regional Director directed a mail ballot election “based on the extraordinary circumstances presented by the COVID-19 pandemic.” The hospital appealed, challenging the Regional Director’s finding of “extraordinary circumstances.”

In their majority opinion, Chairman John F. Ring, Member Marvin E. Kaplan and Member William J. Emanuel outline six circumstances, the existence of any which one would “normally suggest the propriety of using mail ballots under the extraordinary circumstances presented by this pandemic.” These circumstances include:

  1. The NLRB regional office conducting the election is operating under “mandatory telework” status.
  2. Either the 14-day trend in the number of new confirmed cases of COVID-19 in the county where the facility is located is increasing, or the 14-day testing positivity rate in the county where the facility is located is 5 percent or higher.
  3. The proposed manual election site cannot be established in a way that avoids violating mandatory state or local health orders relating to maximum gathering size.
  4. The employer fails or refuses to commit to abide by GC Memo 20-10, Suggested Manual Election Protocols.
  5. There is a current COVID-19 outbreak at the facility or the employer refuses to disclose and certify its current status.
  6. Other “similarly compelling circumstances.”

The NLRB remanded the case to the Regional Director to reconsider her decision after applying the Board’s new guidelines and in light of any changed circumstances.

Member McFerran, while commending her colleagues in her concurring opinion “for recognizing the reality of a public health emergency,” argues that the default presumption during the pandemic should be that mail-ballot elections are appropriate, instead of the case-by-case framework preferred by the majority writers. She writes, “a clear instruction to Regional Directors that the default assumption is to conduct elections via mail ballot during the pandemic provides a bright-line rule that would be efficient to administer, would further public health policy, and would be easy for employees, employers, and the public to understand.” More broadly, Member McFerran adds that the Board should “reevaluate both its preference for manual elections and its related antipathy toward manual voting,” highlighting the changing nature of the American workforce and the successes of other Federal labor agencies utilizing electronic voting.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Labor Management Relations Team.

By: Molly Gabel and Samuel Rubinstein

Seyfarth Synopsis: Over a year since it was introduced, the New York State Senate and Assembly recently passed the Healthy Terminals Act.  The Act, among other things, gives the government the authority to set prevailing wages and overtime rates for covered airport workers.  At this time, it is unclear whether Governor Cuomo will sign the Act.

Introduction

On July 22, 2020, after a year of sitting in committee, Senate Bill S6266D (also known as the Healthy Terminals Act) passed in both the New York State Senate and Assembly.  The purported impetus behind the Act was the number of airport workers who were uninsured.  The Act is heading to the Governor’s desk for his signature.  If it is signed, the Act will take effect on January 1, 2021.

Prevailing Wage

A key priority for worker groups lobbying for the legislation was to have a prevailing wage for covered airport workers.  If the Governor signs the bill, the “fiscal officer,” usually the Comptroller of a city, will determine the prevailing wage every September 1st beginning in 2021 “for the various classes of covered airport workers in the locality.”  “Wage” includes the “basic hourly cash rate of pay” and a supplemental benefits rate for fringe benefits, including “medical or hospital care, pensions or retirement or death compensation for injuries or illness resulting from occupational activity, unemployment benefits, life insurance, disability and sickness insurance, accident insurance, and other bona fide fringe benefits not otherwise required by federal, state, or local law to be provided by [the] covered airport employer.”  The obligation to pay prevailing supplements may be discharged by furnishing any equivalent combinations of fringe benefits or by making equivalent or differential payments in cash under the fiscal officer’s rules and regulations.

Overtime

The bill amends the existing Prevailing Wage for Building Service Employees law to include “covered airport employers” and “covered airport workers.”  Pursuant to this amendment, covered airport workers will be entitled to overtime at a rate not less than one-and-one-half times the prevailing basic cash hourly rate for work of more than eight hours in any one day or more than forty hours in any workweek.  N.Y. Labor Law § 232.

Covered Airport Employers, Employees, and Locations

The Act applies to “covered airport employers,” which is defined broadly to cover any entity employing any covered airport worker in an occupation, industry, trade, business, or service.  However, it does not apply to a public agency.  Notably, and although exclusions may come in through the regulatory rulemaking process if the bill is signed into law, the bill itself appears to cover air carriers and their employees.  The bill itself also appears to cover private-sector employers covered by collective bargaining agreements and does not explicitly allow for a waiver in collective bargaining agreements.

Covered airport workers include “any person employed by a covered airport employer to perform work at a covered airport location provided at least one-half of the employee’s time during any workweek is performed at a covered airport location.”  It does not include any person employed in an executive, administrative, or professional capacity as defined under the United States Fair Labor Standards Act.  Furthermore, it does not include any employees covered under the Public Work and Grade Crossing Elimination Work Articles of the New York Labor Law.

Finally, a “covered airport location” are the airports within the state operating under the jurisdiction of the Port Authority of New York and New Jersey.  This currently includes John F. Kennedy, LaGuardia, and New York Stewart International Airport.

Other Requirements

The bill contains extensive recordkeeping requirements associated with the calculation of the prevailing wage.  It also includes various contracting-related language requirements.

Employer Takeaways

Assuming that Governor Cuomo signs the bill, it is imperative for employers with air terminal operations to consider how this Act will impact them.  Employers should carefully consider whether they can avail themselves of various federal and state constitutional and preemption or other defenses.

By: Jason J. Silver and Glenn J. Smith

Seyfarth Synopsis: As the COVID-19 virus continues to surge throughout parts of the United States, the General Counsel’s office of the NLRB has issued certain “suggested” safety protocols to allow Regions to conduct manual elections in this unprecedented environment. The suggested safety protocols are likely to receive a high level of deference from the Regions.

On July 6, 2020, after discussions with Regional Directors, the NLRB Division of Operations-Management, NLRB COVID-19 Task Force Members, and the NLRB’s internal union, the Office of the General Counsel published suggested protocols that outline how to safely and efficiently conduct manual elections during the COVID-19 pandemic.

GC Memorandum 20-10 made perfectly clear that Regional Directors still have the authority to make decisions about how, when, and in what manner elections are to be conducted and that Regional Directors will continue to do so on a case-by-case basis considering numerous variables, including, but not limited to, the safety of Board Agents and participants when conducting the election, the size of the proposed bargaining unit, the location of the election, the staff required to operate the election, and the status of pandemic outbreak in the election locality.

Election Arrangements to Be Included in Election Agreement or Direction of Election

  • The Employer must provide:
    • Plexiglass barriers of sufficient size to separate observers, the Board Agent, and voters from each other;
    • Masks, hand sanitizer, gloves, and wipes for observers;
    • Markings on the floors to remind/reinforce social distancing;
    • Disposable pencils without erasers for each voter;
    • Glue sticks or tape to seal challenge ballot envelopes.
  • The NLRB must provide a mask, face shield, hand sanitizer, gloves, disinfectant wipes, and disposable clothes (if requested) to the Board Agent conducting the election.
  • The election location must:
    • Contain spacious polling areas sufficient to accommodate social distancing to ensure proper separation of observers, Board Agents, and voters;
    • Have a separate entrance and exit for voters in the polling area;
    • Have separate tables spaced six-feet apart for the Board Agent, observers, ballot booth, and ballot box.
  • All voters, observers, party representatives, and other participants should wear CDC-conforming masks in all phases of the election.

Election Mechanics

  • Polling times and procedures for releasing voters must be sufficient to accommodate social distancing and cleaning requirements. Tables and voting booths must maintain proper social distancing.
  • Any Election Agreement or Direction of Election should specify the maximum number of representatives who can attend the pre-election conference, whether there will be a voter release schedule, the number of voter lists, and the number of observers per party (which should be limited to one where feasible).
  • Only one voter is allowed to approach voter booth at a time. After clearance by the observer, the Board Agent will place an individual ballot on the table for the voter.

Certifications Required

  • Each party or party representative participating in the pre-election conference, serving as an observer, or participating in the ballot count must certify in writing that within the preceding 14 days:
    • They have not tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
    • Are not awaiting results of a COVID-19 test;
    • Have not had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.

* Individuals who do not provide such certification will not be permitted to be physically present at the pre-election conference, to serve as an observer, or be present at the ballot count*

**Individuals who are not a party, party representative, or an observer must stay at least 15 feet away from the Board Agent at the pre-election conference or ballot count**

  • 24-48 hours prior to the election, the Employer must certify in writing:
    • That the polling area has been cleaned in accordance with CDC hygiene and safety standards.
    • How many individuals present at the facility within the preceding 14 days have:
      • Tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
      • Are awaiting results of a COVID-19 test;
      • Are exhibiting symptoms of COVID-19;
      • Had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.

* The Regional Director will consider whether the election should be held as scheduled if the appropriate certification is provided*

**If the appropriate certification is not timely provided the Regional Director has the discretion to cancel the election**

  • All parties must agree in writing to notify the Regional Director within 14 days after the election if any individuals who were present at the facility on the day of the election have:
    • Tested positive for COVID-19 (or have been directed by a medical professional to proceed as if they have tested positive for COVID-19);
    • Are awaiting results of a COVID-19 test;
    • Are exhibiting symptoms of COVID-19;
    • Had any direct contact with anyone who has tested positive for COVID-19 in the preceding 14 days.

Takeaway

This latest GC memorandum suggests that if certain safety and hygiene protocols are met, Regions may begin to return to the more regular method of conducting in-person manual elections. Although the protocols are “suggestions,” the expectation is for Regions to adopt some if not all of the protocols for in-person manual elections on a case-by-case basis. If any of the suggested safety protocols are challenged in the future, the NLRB will ultimately have to decide the matter.

By:  Jennifer L. Mora

Seyfarth Synopsis: In Circus Circus Casinos Inc. v. NLRB, No. 18-1201 (June 12, 2020), the US Court of Appeals for the DC Circuit denied the National Labor Relations Board’s cross-application for enforcement of its decision, where the Court found, among other things, that the Board had “significantly alter[ed] the test for valid Weingarten requests to cover the facts of this case.”

The employee was a journeyman carpenter represented by the United Brotherhood of Carpenters and Joiners of America (“Union”). During a safety meeting, the employee and others raised concerns that secondhand exposure to marijuana smoke in guest rooms could cause employees to test positive for illegal drugs. Several weeks later, the casino initiated an investigation into whether the employee violated company policy with respect to a medical exam mandated by the Occupational Safety and Health Administration. The employee refused to submit to the examination, which the casino considered a violation of company policy. The casino suspended him pending investigation. When a human resources representative contacted the employee to set up the interview, she provided a phone number for the Union in the event the employee desired to have a Union representative present at the meeting. The employee attempted to contact the Union twice by phone, but to no avail.

The employee returned to the facility for the interview. The department head and two human resources representatives attended on behalf of the casino. According to the employee, he looked around the hallway for a Union representative before entering the meeting and began by stating: “I called the Union three times [and] nobody showed up, I’m here without representation.” The casino’s witnesses denied the employee made this statement at the beginning of the meeting but acknowledged continuing the interview without offering him union representation. At the termination meeting held the same month, a Union steward was present with the employee. At that time, the casino advised the employee that it was terminating him for insubordination and refusing to submit to mandatory testing.

The NLRB found the casino violated the Act by, among other things, denying him a Weingarten representative during the investigatory interview. According to the Board, the employee triggered Weingarten by stating at the beginning of the meeting: “I called the Union three times [and] nobody showed up, I’m here without representation.” As the Board explained, “[s]ubsumed in the statement is a reasonably understood request to have someone present at the meeting.” Further, the Board concluded the casino unlawfully compelled the employee to attend the meeting when it failed to offer him the choice between continuing unassisted or foregoing the interview altogether.

The Court disagreed and held that the Board “acted in an arbitrary and capricious manner by significantly altering the test for valid Weingarten requests to cover the facts of this case.” According to the Court, to invoke the Weingarten right, an employee’s utterance must be “reasonably calculated” to put the employer “on notice of the employee’s desire for union representation.” Under the “reasonably calculated” notice standard, the Board has long required an employee to affirmatively request representation in order to invoke the protections of the Act. The Court gave examples of valid requests: a straightforward demand (“I need a Union Steward.”); questions about the need for assistance (“[S]hould [I] have a union representative present[?]”); or requests for delay or an alternative representative. In the case before it, the Court wrote:

[The employee] merely recited facts about his past communication with the Union and the circumstances of his attendance at the meeting: “I called the Union three times [and] nobody showed up, I’m here without representation.” Any affirmative request by [the employee] was made to the Union rather than to a [company] representative—there was no valid request here to trigger Weingarten’s requirements.

As a result, according to the Court, “[t]he Weingarten allegation should have been dismissed because [the employee] did not make an affirmative request for union representation.” It concluded its discussion about the Weingarten violation with a reminder as to the applicable standard: “Weingarten requires an employee to affirmatively request union representation in a manner reasonably calculated to put the employer on notice,” which can take the form of demands, questions, or related requests for delay or for a specific representative. (The Court also denied enforcement of the Board’s finding that the casino terminated the employee in retaliation for exercising protected union activities.)

The decision serves as a reminder to employers that the validity of an employee’s request for Weingarten assistance often turns on the nature of the request and the factual circumstances surrounding it. Given the broad remedies available if an employee fails to grant a Weingarten request, employers must exercise caution and carefully weigh the adequacy of an employee’s request. After receiving any type of notice that an employee desires representation, employers should consider delaying or terminating the interview until a union representative or alternative representative can be identified, or simply canceling the interview and proceeding with discipline consistent with any existing labor agreements.

By: Jennifer L. Mora

Seyfarth Synopsis: On June 23, 2020, the National Labor Relations Board reversed precedent and held in Care One at New Milford, 369 NLRB No. 109 (2020), that during negotiations for a first collective bargaining agreement, employers do not have a duty to bargain with a union over discipline for newly organized employees if the discipline is issued consistent with established disciplinary policies or practices. The decision is retroactive to any case currently pending before the NLRB.

For almost 80 years, the National Labor Relations Board had in place a longstanding rule that employers had no obligation to give a union notice of or an opportunity to bargain over discipline before reaching agreement with a newly elected union on a first contract. That all changed, however, when the NLRB held in Total Security Management Illinois 1, LLC, 362 NLRB No. 106 (2016), that an employer, with limited exceptions, was required to provide a union with notice and an opportunity to bargain about discretionary elements of an existing disciplinary policy before imposing serious discipline on any newly represented employees while bargaining for a first contract. Notably, the NLRB had reached a similar conclusion in Alan Ritchey, Inc., 359 NLRB 396 (2012). That decision, however, was invalidated by the U.S. Supreme Court’s holding in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), because the Board’s composition at the time of Alan Ritchey included two individuals whose appointments violated the United States Constitution.

As is often the case with the NLRB, the pendulum has swung back, with the current NLRB blasting the Total Security decision for going to great lengths to “devise a contorted bargaining scheme at odds with traditional bargaining practices” and having “shredded longstanding principles governing the duty to bargain.” On June 23, 2020, the NLRB overturned Total Security and held in Care One at New Milford, 369 NLRB No. 109 (2020), that employers have no duty to bargain over serious employee discipline imposed before the negotiation of a collective bargaining agreement so long as the employer acts consistent with a pre-existing disciplinary policy.

According to the Board, Total Security had conflicted with prior Board precedent and the Supreme Court’s statements in NLRB v. Weingarten, 420 U.S. 251 (1975), that a labor organization does not have “any particular rights with respect to pre-disciplinary discussion which it otherwise was not able to secure during collective-bargaining negotiations.” Second, the Board found that Total Security misconstrued the general unilateral-change doctrine announced in the Supreme Court’s decision in NLRB v. Katz, 369 U.S. 736 (1962), with respect to what constitutes a material change in working conditions. Finally, the Care One NLRB concluded that Total Security had imposed a complicated and burdensome bargaining scheme that was irreconcilable with the general body of law governing statutory bargaining practices. According to the Board in Care One:

[T]he correct analysis … 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 …. As such, 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.

Negotiating with a labor organization for a first contract can be stressful and time-consuming, which makes the Board’s decision a welcome sigh of relief for employers. In fact, it applies retroactively to any case currently pending before the NLRB. That said, employers with new collective bargaining relationships with labor organizations still must be mindful of the obligation to ensure that any pre-contract discipline is imposed in accordance with their existing disciplinary policies or practices.

By: Kyllan B. Kershaw

Portions of the NLRB’s expansive new representation election rules–scheduled to go into effect on May 31, 2020 following a COVID-19 related delay–were struck down by court order one day prior to becoming effective.  On May 30, 2020, a judge for the U.S. District Court for the District of Columbia ruled that certain portions of the NLRB rules that were challenged by the AFL-CIO were substantive in nature and not implemented in accordance with the Administrative Procedure Act, which requires that any rules that are not merely procedural in nature be subject to a notice-and-comment period.  This late-game decision follows numerous public information sessions held by the NLRB in anticipation of the rollout of the new rules.

In her ruling, Judge Ketanji Brown Jackson overturned elements of the rules challenged by the AFL-CIO, including:

  • Providing employers an increased ability to challenge and litigate certain issues prior to an election;
  • Increasing the length of time between the filing of the petition and the date of the election;
  • Adding to the time period for an employer to serve a voter list;
  • Limiting who can serve as an election observer; and
  • Delaying certification of election results if a request for review is pending or may still be timely filed.

The remainder of the rules were not overturned by the Court; however, the Court remanded the entire set of rules to the NLRB for reconsideration following the court’s ruling. On June 1, 2020, the NLRB announced that all unaffected rules would be implemented immediately, and those now effective changes include the following:

  • Scheduling the hearing at least 14 days from issuance of the notice of hearing;
  • Posting the notice of election within 5 days instead of 2 days;
  • Changes in timeline for serving the non-petitioning party’s statement of position;
  • Requiring petitioner to serve a responsive statement of position;
  • Reinstatement of Post-Hearing Briefs;
  • Reinstating Regional Director discretion on the timing of a notice of election after the direction of an election;
  • Ballot impoundment procedures when a request for review is pending;
  • Prohibition on bifurcated requests for review;
  • Certain changes in formatting for pleadings and other documents; and
  • Terminology changes and defining days as “business” days.

The Court’s order is not yet final and a full Memorandum Opinion is still forthcoming, at which point the NLRB insists it will appeal.

In the interim, the 2014 rules regarding R-case procedures remain in effect as modified above.  This decision is a disappointment to those that were anticipating a completely revised set of election rules to replace the so-called ambush election rules.  A process that provides the parties with a more reasonable time line is particularly important given the difficulties in campaigning during the current COVID-19 pandemic.  Having said that, there are some significant modifications to the prior election rules now in effect that will provide for more meaningful analysis, including an opportunity to understand the petitioner’s legal position before the hearing.

Employers should continue to be proactive to maintain positive employee relations, stay in front of workplace issues, and have plans in place for union-organizing efforts.  We are here to help.

By: Bryan M. O’Keefe, Charles M. Guzak, and Samuel I. Rubinstein

Seyfarth Synopsis: In a move that will provide clarity to both unions and employers, the National Labor Relations Board in Providence Health & Services – Oregon d/b/a Providence Portland Medical Center, 369 N.L.R.B. No. 78 (May 13, 2020) held that dual-marked ballots in a NLRB supervised secret ballot election should be voided in the election tally. This new standard applies retroactively. Employers should ensure that their instructions to employees on how to mark ballots in NLRB supervised secret ballot elections are updated to take account of this important procedural rule change.

Facts

One ballot out of 767 was the difference in determining whether the union would represent the employees. The ballot in question contained a diagonal line in the “No” square and an “X” in the “Yes” square.   With the conflicting marks, did the voter intend to vote for Union representation or against it?  Since Board elections are conducted by secret ballot, the Regional Director could not use voter testimony to ascertain what the intent of the two marks was. However, applying extant case law, the Regional Director concluded that “it [was] possible to discern a clear expression of the voter’s intent based on the ballot’s irregular markings.” On that basis, the ballot was counted as a vote in favor of the union, resulting in a tally of 384 votes for the union and 383 votes against it. In light of this narrow loss hinging entirely on a single, questionable ballot, the Employer filed a timely request for review, which was granted by the Board.

The Board’s Holding

Prior to this case, the Board evaluated dual-marked ballots by determining whether the voter’s intent could be “ascertained from other markings on the ballot,” such as an attempt to erase one of the two marks or one mark being crossed out. Under that standard, a dual-marked ballot was considered void if there was no other marking to indicate the voter’s intent.

Noting the inconsistencies in past adjudications of dual-marked ballot cases, the Board modified its standard. Finding that it has “no special expertise in judging whether stray marks represent attempted erasures or obliterations,” the Board concluded that such an exercise risked becoming an inquiry rested on speculation, and it was not an efficient use of agency resources. Thus, the Board adopted an objective, bright-line rule pertaining to dual-marked ballots: “where a ballot includes markings in more than one square or box, it is void.” Furthermore, the Board found that the standard would apply retroactively.

Applying this new standard to the case at hand, the Board voided the ballot in question; thus, the tally was tied at 383 votes. Since the union did not receive a majority of the valid votes cast, the union did not become the exclusive representative for the bargaining unit.

Impact on Employers

This new standard may benefit employers, unions, and the Board alike by making it clear how dual-marked ballots will be counted. To be sure, however, the new standard is a double-edged sword for employers: after all, it is just likely that a dual-marked ballot on which the voter intended to vote “No” will now be voided as well. For that reason, employers should make sure that their instructions to employees on how to vote in an election are updated to take account of the new voided ballot rule. Voters should know ahead of time that in order to be counted as a “No” vote, the ballot must only be marked once.