Search results for: Tri-Cast

 By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December.  Click here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.

While the weather outside may be frightful (for some), the agenda recently set forth by NLRB General Counsel Robb in GC 18-02 is sure to make some employers delightful this holiday season. In this installment, we will focus on the GC’s targeting of the Obama Board’s controversial decisions imposing the duty to bargain over discipline of newly unionized employees, as well as the GC’s preservation of longstanding Board doctrines governing employer campaign communications and withdrawing recognition of unpopular unions.

Out with the Old: The End of Alan Ritchey?

As we discussed here, the Board in Total Security Management, 364 NLRB No. 106 (Aug. 26, 2016) not only reaffirmed the Board’s employer-maligned Alan Ritchey decision, which required employers to bargain over discretionary discipline issued to newly organized employees prior to execution of a first contract, but also mandated prospective make-whole relief including reinstatement and back pay for future violations.

Total Security Management went even further and held that such make-whole relief would be subject to an employer’s “for cause” affirmative defense, placing the ultimate burden of persuasion on the employer to show at the compliance phase that (1) the employee engaged in misconduct; (2) the misconduct was the reason for the suspension or discharge; and (3) that the employee would have received the same discipline regardless of any disparate treatment or reasons for leniency shown by the charging party.

With GC 18-02’s listing of Total Security Management as one Board decision that “might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis,” GC Robb sends a gift-wrapped message to employers that, much like 2017, Alan Ritchey’s and Total Security Management’s days may be numbered.  However, employers should continue treading carefully when considering discipline for newly unionized employees. While the Board’s reversal of these precedents are on the agenda, they remain the law of the land.

In with the . . . Old?: Preserving the Levitz Furniture and Tri-Cast Doctrines

GC Robb’s memo also expressly rescinds former General Counsel Peter Griffin’s GC 16-03, which implored the Board to overturn the framework set forth in Levitz Furniture, 333 NLRB 717, 717 (2001), which allows employers to unilaterally withdraw recognition from a union based on objective evidence that the union has lost majority support (i.e., employee signatures).  Griffin advocated for a new rule requiring a Board-sanctioned election before an employer could lawfully withdraw recognition.  With Robb’s rescinding of GC 16-03, employers can sleep somewhat easier in the year(s) ahead knowing that the Levitz framework will remain intact and that the option for employees to quickly rid themselves of an unpopular union will not be impeded through a long and costly election process.

In addition, GC 18-02 announces Robb’s abandonment of GC Griffin’s initiative to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees during organizing campaigns.  In Tri-Cast, 274 NLRB 377 (1985), the Board held that an employer could lawfully inform employees during a union campaign that they will not be able to discuss matters directly with management if they vote for the union and that such statements could not reasonably be characterized as retaliatory threats.

While the Obama Board had indicated its willingness to eventually overturn Tri-Cast, GC 18-02 effectively ensures that the current Board will maintain the status quo in the new year.

Should you have any questions about GC 18-02 or any labor relations issue, please contact the author, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

By Kenneth R. Dolin

The Obama Board recently signaled that it would reexamine the doctrine set forth Tri-Cast, Inc., 274 NLRB 377 (1985). See Dish Network Corp., 359 NLRB No. 32 (Dec. 13, 2012). In Tri-Cast, the employer, on the day of the election, distributed a letter to employees that provided:

We have been able to work on an informal and person-to-person basis. If the union comes in this will change.

We will have to run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing.

The Regional Director there concluded these employer statements misrepresented employee rights under Section 9(a) of the National Labor Relations Act, under which employees retain the right, with certain limitations, to present individual grievances to their employer. The Regional Director also found that the employer statements amounted to an unlawful threat to take away an existing employee right since the employer was implying, contrary to Section 9(a), that personal requests would not be handled as before simply because of unionization. Thus, the Regional Director found the employer statements were objectionable and warranted setting aside the results of the election.

The Board in Tri-Cast disagreed with the Regional Director’s finding that the employer threatened to withdraw rights preserved by Section 9(a). According to the Tri-Cast Board, the employer’s statement:

simply explicates one of the changes which occur between employers and employees when a statutory representative is selected.  There is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employers will not be as before.  This is especially so, as implied in the [e]mployer’s statement here, where a collective-bargaining agreement is negotiated.  For an employer to tell its employees about this change during the course of an election campaign cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more than permissible campaign conduct.

Id. at 377.

It is a fact of industrial life that union-represented employees often deal with their employer indirectly, through a shop steward, and that the desired result of collective bargaining–a collective bargaining agreement–often leads to fewer inconsistencies. Indeed, unions often campaign that they will eliminate management favoritism by limiting–if not eliminating entirely–management flexibility. Moreover, that employer statements may misrepresent Section 9(a) should not serve as a grounds for finding objectionable conduct because the Board does not set elections aside on the basis of misleading campaign statements. Notwithstanding the above, it is likely that if a Tri-Cast issue arises in connection with a future charge, then the Acting General Counsel will almost certainly issue a complaint and ask the Obama Board to reverse the well-established Tri-Cast precedent of more than 25 years. Furthermore, as it stands, the Obama Board appears to be inclined to overrule Tri-Cast. The effect of such a decision will be that employer statements are unlawful if they can reasonably be interpreted to mean that a union election will cause an employer to take away existing beneficial situations enjoyed by employees. Such statements also will be viewed as objectionable threats that warrant setting aside the results of an election.

By: Jamie Rich, Lisa Nichols, and Joe Vento

On August 25, 2023, the National Labor Relations Board (NLRB or Board) issued its much-anticipated Cemex decision, which has broad implications for union organizing. It handed unions a win with a partial return to the Joy Silk standard. Now, if a union demands recognition from an employer because it claims that it has obtained union authorization cards demonstrating majority support within a bargaining unit, the employer must pursue one of two options: (1) it can recognize and bargain with the union or (2) it can file a petition (a so-called RM Petition) seeking an NLRB election. If the employer and union proceed to an NLRB election and the employer commits unfair labor practices prior to the election, that would normally require a rerun of the election. Under the new Cemex standard, if an employer engages in even one unfair labor practice after a petition for election is filed, the Board may instead refuse to hold an election and issue an order requiring the employer to recognize and bargain with the union. An employer may also be subject to a bargaining order if it neither recognizes the union nor files a petition for an election.

Unions have long advocated for card check recognition requirements via proposed legislation such as the Employee Free Choice Act and the PRO Act. These efforts have repeatedly failed. But recently, in GC Memo 21-04, NLRB General Counsel Jennifer Abruzzo indicated that she would seek to overturn decades of settled United States Supreme Court and NLRB precedent regarding the voluntary nature of card check recognition. In the GC Memo, she asked the Regional Offices reporting to her to submit cases to the Division of Advice, so that she could pursue certain cases that might allow the Board to overturn existing precedent and change the law. The General Counsel found that opportunity in Cemex.

The Background on Cemex

Cemex stemmed from an organizing drive among certain ready-mix drivers employed in Southern California and Las Vegas, Nevada. Around 2018, the International Brotherhood of Teamsters (Union) began organizing a unit of 350 ready-mix drivers and trainers at 24 Cemex facilities. The union filed a petition for election with the NLRB in December 2018, after gathering 207 authorization cards. The employer’s reaction to the union’s organizing drive was described as “quick” and “aggressive.” The ALJ found that the employer: (1) employed approximately five independent consultants to assist with the employer’s campaign; (2) met with small groups and individuals daily for approximately six months; (3) presented PowerPoint displays and answered questions at several small-group meetings; (4) presented employees with two video messages urging employees to reject the union; (5) distributed stickers, flyers, pamphlets, and letters encouraging employees to reject the union; and (6) monitored the Union’s social media and posted “antiunion” messages on its own social media.

In March 2019, the employees voted against the union by a margin of 179 to 166. The union objected to the election, arguing that the employer engaged in extensive unlawful and coercive conduct which required setting aside the election. On review of the union’s objections, the ALJ found the employer had engaged in numerous unfair labor practices, such as threatening employees that they could be fired or written up for having union stickers on their hard hats; telling employees that they could be discharged or have their hours reduced if they choose to unionize; stating that the company would “close their doors and take all their trucks to another site” if the union won the election; and discharging an employee because of her union activity, among others.

The ALJ ordered a rerun of the election, along with additional remedial actions “designed to dissipate as much as possible the lingering atmosphere of fear created by its unlawful conduct and to insure that if the question of union representation is placed before employees in the future they will be able to voice a free choice.”

The Board’s Announcement of a New Standard for Card Check Recognition

On appeal, the General Counsel argued that a bargaining order (an order imposing union recognition and directing the employer to begin collective bargaining negotiations) was the appropriate remedy for the employer’s violations, not a rerun of the election. Specifically, the General Counsel asked the Board to overturn Linden Lumber, which held that an employer does not violate the National Labor Relations Act solely by insisting on an NLRB election and refusing to accept other evidence of majority status. The General Counsel also asked the Board to return to the Joy Silk standard, which held an employer violates the Act by refusing to bargain with a union with majority support upon request, absent a showing of good faith doubt about the union’s majority status. In response, Cemex argued that even if the Board were to return to the decades-old Joy Silk standard, that standard could not be applied to its situation because the union had never presented evidence of a card majority.

The Board announced the following standard in Cemex:

An employer violates [the Act] by refusing to recognize, upon request, a union that has been designated as [a] representative by the majority of employees in an appropriate unit unless the employer promptly files a petition … to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition. […] However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.

The decision is clear that neither the employer nor the General Counsel will need to apply or prove the “good faith doubt” standard found in Joy Silk. Instead, the employer is free to seek an NLRB election to test the union’s majority status. The decision also points out that an employer who simply refuses to bargain without filing a petition for an election may still demonstrate that it does not have a bargaining obligation in a later-filed unfair labor practice case. However, the employer acts “at its peril” when it takes this approach.

The decision also clarifies that a bargaining order is not “the first and only option” when an employer commits an unfair labor practice during the critical period prior to an election. Instead, the applicable standard requires consideration of all relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to the election date, and the number of unit employees affected. But notably, the Board acknowledged dissenting Member Kaplan’s point as accurate that an employer’s “generally applicable handbook confidentiality policy” could serve as the requisite unfair labor practice to warrant a bargaining order under certain circumstances.   

If the employer commits unfair labor practices that invalidate the election, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means and issue an order requiring the employer to recognize and bargain with the union from the date the union demanded recognition from the employer. The Board emphasized that the employer’s right to the NLRB election machinery “will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct.”

After announcing and clarifying its new standard, the Board issued an order requiring Cemex to recognize and bargain with the union. It held that Cemex refused the union’s request to bargain at a time when the union had in fact been designated representative by a majority of employees in a concededly appropriate unit, and then committed unfair labor practices requiring the election to be set aside. In response to the employer’s argument that the union had not demanded recognition, the Board explained that the union met this requirement when it filed a petition for an election.

The Board Declined to Revisit Mandatory Meetings and Tricast Precedent

Cemex also presented an opportunity to review two other legal issues found in GC Memo 21-04: (1) whether so-called “captive audience” meetings which require workers to listen to arguments against unionization are coercive, and (2) whether there should be new restrictions on certain employer speech. The Board was unwilling to use Cemex to overturn precedent on those issues.

The Board first declined the General Counsel’s request that it overrule Babcock & Wilcox, which addressed the lawfulness of employer-mandated campaign meetings. It found that the record did not establish that all or most employees were required to attend the employer’s small-group meetings on threat of discipline.

The Board then declined to overrule Tri-Cast and its related precedent, and reversed the judge’s finding that the employer violated the Act when it told drivers that unionization would change their relationship with management, that once they were under a collective-bargaining agreement they would have to go through the union instead of going directly to management, that they would lose their ability to deal directly with their supervisors, and that they were putting their relationship with management at risk. However, the Board noted that Chair McFerran and Members Wilcox and Prouty are willing to reexamine Tri-Cast and related precedent in the future with an appropriate case.

What This Means For Unions

Many unions have updated their organizing playbooks, and are already sending employers a letter demanding card check recognition prior to filing a petition for election with the NLRB. This is sure to become standard practice following Cemex. In a statement issued by the NLRB, Chair McFerran said, “The Cemex decision reaffirms that elections are not the only appropriate path for seeking union representation, while also ensuring that, when elections take place, they occur in a fair election environment.” She went on to explain that, “Under Cemex, an employer is free to use the board’s election procedure, but is never free to abuse it — it’s as simple as that.”

What This Means For Employers

Union demands for recognition based on authorization cards will now present a minefield for employers. Under the Cemex standard, if an employer refuses card check recognition, files a petition, and proceeds to an election, and is later found responsible for unfair labor practices occurring before the election, it may be subject to a bargaining order instead of a rerun of the election. And an employer will be subject to a bargaining order if it neither recognizes the union nor files a petition for an election. As such, when employers receive a recognition demand from a union, they should proceed with extreme caution.

Unfortunately, Cemex is retroactive, which means the new standard will be applied to any pending case where an employer refused to bargain upon a request for voluntary recognition, engaged in unfair labor practices during the critical period, and won the election, if the union can prove it had majority support at the time it requested recognition. The outcome in those cases may shed light on the types of unfair labor practices that do (or do not) result in a bargaining order.

Unions will be more likely to aggressively file unfair labor practice charges during organizing drives because of the new Cemex framework. Employers should take particular note of the Cemex Board majority’s acknowledgment that unlawful employee handbook policies can serve as the basis for a bargaining order in the right circumstances. This is particularly concerning in light of the Board’s recent decision in Stericycle, Inc., 372 NLRB No. 113 (August 2, 2023) (our blog post on that decision can be viewed here), where the Board held that a facially-neutral work rule is presumptively unlawful if a “reasonable” employee predisposed to engaging in protected concerted activity could interpret the rule to have a “coercive meaning.”

Notably, it remains to be seen whether the new Cemex standard will survive appeal. In a partial dissent, Member Kaplan argued that the United States Supreme Court’s decision in Linden Lumber precludes judicial enforcement of bargaining orders issued under the new standard. Member Kaplan expressed concern that the new standard will “result in lengthy litigation over an alleged violation that will never survive judicial review.”

If you have questions about the impacts of this decision, or if your company is facing an organizing drive, do not hesitate to contact our team of experienced labor attorneys to help guide you through these issues.

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By: Monica Rodriguez, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December.  Click here, here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.

To many employers’ delight, the Collyer Deferral Doctrine is no longer on the NLRB’s “naughty” list thanks to GC Memorandum 18-02, which rescinded GC Memorandum 12-01.

What Is The Collyer Deferral Doctrine?

Under the Collyer Deferral doctrine, the NLRB should defer certain unfair labor practice (“ULP”) charges to an employer’s and a union’s bargained-for contractual grievance procedure if certain requirements are met. The purpose of the doctrine is to encourage the parties to resolve issues directly through their collectively-bargained dispute resolution procedures without unnecessary government intervention.

What Did GC Memorandum 12-01 Do?

In January 2012, Acting General Counsel Lafe Solomon issued General Counsel Memorandum 12-01, instructing NLRB field offices not to defer cases to arbitration where arbitration would not resolve the case within one year. This Memorandum also introduced significant changes to the NLRB’s longstanding arbitration deferral policy by imposing significant limits to the use of dispute resolution systems specifically designed by employers and unions to meet their particular needs.

For example, the Memorandum required that once a case was deferred, the Region must ascertain from the parties the status of the arbitral proceedings every ninety days and determine whether the parties are meeting their obligation to process the case and what action should be taken. Section 8(a)(1) and 8(a)(3) cases had the additional requirement that after the charge had been deferred for one year, the Region should send a “show cause” letter to all parties seeking an explanation of why deferral should not be revoked and a full investigation made. The GC Memorandum 12-01 called the Regions to revoke the parties’ agreed upon method of handling disputes, unless arbitration was imminent. Section 8(a)(5) cases were to be handled in a similar manner as Section 8(a)(3) cases if arbitration was not likely to occur in a year or had not been completed within a year, and the case implicated statutory rights or involved serious economic harm to the Charging Party.

What Does The Rescission Of GC Memorandum 12-01 Mean?

Robb’s new GC Memorandum rescinds this GC Memorandum 12-01. Rescission of this memorandum upholds basic principles of contract law and allows the parties to move within the time limits set forth in their bargained-for agreements.