By: Jennifer L. Mora and Jeffrey A. Berman

The National Labor Relations Board’s sole Democrat, Chairman Lauren McFerran, has issued two new dissents that portend how a Biden Board likely will reverse precedent established by the Trump Board. This update is our fourth in a multi-part series discussing how Chairman McFerran’s dissents are likely to become the law once President Biden appoints new Board members and the Democrats are in the majority (see here regarding confidentiality in arbitration agreements, here regarding implementation of employee handbooks, and here regarding investigative confidentiality rules). The latest examples appear in separate Board decisions issued on April 30, 2021 (The George Washington Univ. Hospital) and May 3, 2021 (AT&T Mobility, LLC).

In George Washington, the Republican majority dismissed a complaint alleging that the employer had engaged in surface bargaining (i.e., going through the motions of negotiating a collective bargaining agreement with no intent of actually reaching a deal). In sum, according to the majority:

The [employer] met with the Union for 30 bargaining sessions, made many of its initial proposals at the outset of the negotiations, solicited counterproposals from the Union, made concessions in response to the Union’s bargaining positions, and never refused to bargain over any mandatory bargaining subject—and all the while it calmly answered the Union’s bellicose conduct by continuing to bargain.

Noting that the Board “does not sit in judgment of a party’s bargaining proposals,” and faced with this evidence, the majority rejected the administrative law judge’s reliance on the substance of the employer’s proposals (primarily an initial request for substantial concessions) in finding bad faith bargaining, pointing to the fact that “not one of the … proposals was unlawful in and of itself.”

McFerran disagreed, pointing to the substance of the employer’s proposals, especially as they related the management rights clause, the no-strike provision, union security, and the grievance and arbitration process. What the majority described as a permissible “wish list, throw-in-the-kitchen-sink” proposal, McFerran’s dissent characterized as an “attempt to disrupt the process to reach an agreement.”

On this critical point,  McFerran argued that “employer proposals which, taken as a whole, would leave employees with fewer rights than they would have without a contract are clearly designed to frustrate the collective-bargaining process.” She would have found a violation based solely on the employer’s presentation of its proposals relating to management rights, strikes, and grievance and arbitration procedures.

McFerran also would have found a violation based on the employer’s proposal to remove union security and dues-checkoff clauses from the agreement. And while the Board faulted the union for not responding to certain employer proposals (opining that the union had decided early on that the employer wasn’t interested in reaching a deal), McFerran stated that the majority was improperly “giv[ing] out points for politeness” and engaging in victim blaming.

The George Washington decision provides a good example of the stark contrast between how Republican and Democrat members view the same facts. It also serves as a reminder to employers to work with experienced labor counsel to develop a bargaining strategy that will withstand scrutiny under the soon-to-be Biden Board.

In AT&T Mobility, LLC, the Republican majority dismissed part of the complaint alleging that the employer violated the National Labor Relations Act by maintaining a work rule stating that employees “may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the legal department.” Applying the Board’s 2017 Boeing decision, the Board balanced the employer’s justification for a policy the Board deemed to be neutral on its face against employees’ Section 7 rights. The Board upheld the policy concluding that, “[a]lthough the policy may prevent recording of some protected conversations, the vast majority of conversations covered by the policy bear no relation to Section 7 activity.”

In dissent, Chairman McFerran signaled that the analytical framework for analyzing handbook policies under Boeing is likely to be jettisoned by the Biden Board. Specifically, she described the rule as “unlawfully overbroad” and asked the Board to “reject the analytical framework of Boeing,” stating that it was “so forgiving to employers that it cannot be reconciled with the Act’s guarantees to employees.”

The fundamental flaw with Boeing, according to McFerran, “is that it permits employers to maintain rules that reasonably tend to chill employees in the exercise of their rights under the Act, while failing to require that employers narrowly tailor their rules to serve demonstrated, legitimate interests.” In comparing the standard for considering work rules before and after Boeing, she wrote:

Until Boeing, an employer was required to tailor workplace rules so that workers would understand that they were free to engage in activity protected by the NLRA without subjecting themselves to discipline or discharge. After Boeing, workers must not only be brave enough to engage in protected activity, but they must also be brave enough to knowingly violate workplace rules and so subject themselves to the threat of discipline. A clearer recipe for stifling protected activity is hard to imagine. (Emphasis in original.)

It is anticipated that, consistent with McFerran’s dissent, the Biden Board will overturn Boeing and return to the Obama Board’s framework for considering employee work rules. According to McFerran, the no-recording rule in AT&T Mobility would have been unlawful under pre-Boeing precedent. As such, employers, including those with non-union workforces, would be well-advised to review their handbook policies in anticipation of a possible dramatic shift in Board law.