By Jason Silver and Glenn Smith

Seyfarth Synopsis: In a 3-1 decision, the National Labor Relations Board (“Board”) in Johnson Controls, Inc., 368 NLRB No. 20 (July 3, 2019), established a new standard for determining whether a union has reacquired majority status after an employer announces its anticipatory withdrawal of recognition based on evidence indicating that the union has lost majority support. The Board’s new framework requires a secret ballot election be conducted when both the employer and the union have evidence supporting their positions of majority status.

Johnson Controls addresses what happens under the following scenario – employees (free from improper influence or assistance from management) provide their employer with evidence that at least 50 percent of the bargaining unit no longer wishes to be represented by their union, the employer tells the union that it will withdraw recognition when the parties’ collective bargaining agreement (‘CBA”) expires based on this evidence, and the union subsequently claims that it has reacquired majority status before the employer actually withdraws recognition.

Prior to Johnson Controls, under this factual scenario, the Board would determine the union’s representative status and the legality of the employer’s action by applying a “last in time” rule, under which the union’s evidence would ultimately control the outcome because it postdates the employer’s evidence.   Johnson Controls changes this.

In Johnson Controls, the employer and the union were parties to a CBA from May 7, 2012 through May 7, 2015. On April 21, the employer received a “Union Decertification Petition” signed by 83 of the 160 bargaining unit employees.  That same day, the employer notified the union of the petition and informed the union that it would no longer recognize it as the employees’ bargaining representative when the CBA expired on May 7, 2015. The union objected to the employer’s position, demanded the employer bargain a successor CBA, and collected new signed authorization cards from the employees.  Between April 27 and May 7, the union collected 69 signed authorization cards, 6 of which were signed by employees who had also signed the disaffection petition. On May 8, the employer withdrew recognition from the union and shortly thereafter instituted unilateral changes related to employees terms and condition of employment.  The union filed an unfair labor practice charge.

Under Board precedent, an employer that receives evidence, within a reasonable period of time before its existing CBA expires, that the union representing its employees no longer enjoys majority support may give notice that it will withdraw recognition from the union when the CBA expires, and the employer may also suspend bargaining or refuse to bargain for a successor CBA. This is called an “anticipatory” withdrawal of recognition.  Under Levitz Furniture Co., of the Pacific, 333 NLRB 717 (2001), however, once the CBA expires, an employer that has made a lawful anticipatory withdrawal of recognition still does so at its peril. If the union challenges the withdrawal of recognition in an unfair labor practice case, the employer will have violated Section 8(a)(5) if it fails to establish that the union lacked majority status at the time recognition was actually withdrawn.

Prior to Johnson Controls, the Board, in making this determination, used to rely on evidence that the union reacquired majority status in the interim between anticipatory and actual withdrawal, regardless of whether the employer knew that the union had reacquired majority status.

In an attempt to address this concern, the Board in Johnson Controls, discarded the “last in time” rule and instead formed a new legal framework in the anticipatory withdrawal context if an employer is presented with evidence that a majority of employees no longer which to be represented by the union upon CBA expiration and the union thereafter provides evidence of its reacquired majority status.

Under this factual scenario, the Board will now order a Board conducted secret ballot election. The Board concluded that this new framework is “fairer, promotes greater labor relations stability, and better protects Section 7 rights by creating a new opportunity to determine employees’ wishes concerning representation through the preferred means of a secret ballot election.”

In modifying the anticipatory of withdraw of recognition legal doctrine, the Board provided a two-step standard. First, the Board concluded that the “reasonable time” before CBA expiration within which anticipatory withdrawal may be effected is defined as no more than 90 days before the CBA expires. Second, the Board provided that if an incumbent union wishes to attempt to re-establish its majority status following an anticipatory withdrawal of recognition, it must file an election petition within 45 days from the date the employer announces its anticipatory withdrawal. The union has 45 days to file this petition regardless of whether the employer gives notice of anticipatory withdrawal more than or fewer than 45 days before the CBA expires. Any rival union may intervene in the incumbent’s representation case on a sufficient showing of interest.

Thereafter, the Board held that “If no post–anticipatory withdrawal election petition is timely filed, the employer, at contract expiration, may rely on the disaffection evidence upon which it relied to effect anticipatory withdrawal; that evidence—assuming it does, in fact, establish loss of majority status at the time of anticipatory withdrawal—will be dispositive of the union’s loss of majority status at the time of actual withdrawal at contract expiration; and the withdrawal of recognition will be lawful if no other grounds exist to render it unlawful.”

The new standard will apply retroactively. The new framework in Johnson Controls provides clarity and guidance for employers regarding how to respond to an employee decertification petition near the expiration of a CBA. Although the holding in Johnson Controls is narrow and limited to only anticipatory withdrawal of recognition cases, the holding advances employee free choice by mandating a Board conducted secret-ballot election. The ruling fits with the Board’s ongoing efforts to make it easier for dissatisfied employees to get rid out their union.

By Ashley K. Laken and Howard Wexler

Seyfarth Synopsis: Just before the end of the legislative session, lawmakers in New York introduced the “Dependent Worker Act,” which proposes to provide workers in the gig economy with certain rights, including the right to unionize.

On June 14 and 15, lawmakers in the New York State Assembly and the New York State Senate introduced the “Dependent Worker Act,” which would classify workers in the gig economy as “dependent workers” under New York law and extend to them the right to unionize and collectively bargain with their employers, and also provide them with the right to bring wage theft claims.

The proposed legislation defines “dependent worker” as an individual who provides personal services to a consumer of such personal services through a private sector third-party that establishes the gross amounts earned by the individual, establishes the amounts charged to the consumer, collects payment from the consumer, and/or pays the individual.  Although the NLRB’s Division of Advice has said that rideshare drivers are independent contractors who cannot unionize under federal labor law, the Dependent Worker Act would give such gig economy workers in New York the right to unionize under New York state law.

The proposed Act does not provide for minimum wage or overtime requirements for dependent workers, does not extend the anti-discrimination protections of the New York Human Rights Law to dependent workers, does not extend paid family leave to dependent workers, and does not treat dependent workers as employees for purposes of unemployment insurance, workers’ compensation, and disability insurance.  That being said, the proposed legislation directs the New York Commissioner of Labor to consider giving dependent workers those rights.

Some workers’ advocates have pushed back against the proposal, saying that the proposal does not go far enough in protecting gig workers.  But the New York State AFL-CIO is backing the bill and has asked its Twitter followers to ask their representatives to support it.

It is expected that the New York legislature will use the time between now and the next legislative session to hold hearings and receive feedback from workers and businesses on how the bill could be improved.

Takeaway for Employers

Employers of gig workers should keep an eye on this proposed law, and should also take heed of the possibility that other jurisdictions may use New York’s actions as inspiration and a potential model in passing their own gig worker protection laws.  Employers of gig workers in New York may also want to consider reaching out to their State Senators and/or Assemblypersons to express their views on the proposed legislation.

 By: Ashley Laken

Seyfarth Synopsis: The NLRB’s Division of Advice recently released an Advice Memorandum finding that a security company’s work rules were unlawfully overbroad, but that the company did not violate the National Labor Relations Act by discharging one of its employees for posting an insidious Facebook video or by filing a defamation lawsuit against two former employees.

Earlier this month, the NLRB’s Division of Advice publicly released an Advice Memorandum that it had issued to Region 27 of the NLRB in August 2018 (the NLRB’s policy is to release Advice Memos at its discretion only after the disputes they concern end), in which the Division of Advice opined on the legality of a security company’s workplace policies, the discharge of an employee for posting a Facebook video, and the company’s filing of a defamation lawsuit against that employee and another former employee. In Colorado Professional Security Services, LLC (Case 27-CA-203915, et al.), the NLRB’s Division of Advice found the policies at issue were unlawful, but did not find the employee’s firing or the defamation lawsuit were unlawful.

The Facts

The company maintained the following policy: “Employees must refrain from engaging in conduct that could adversely affect the Company’s business or reputation. Such conduct includes, but is not limited to…publicly criticizing the Company, its management or its employees.”

In 2016, Charging Party 1, a former employee, filed federal and state court wage-and-hour lawsuits against the company; the lawsuits were joined by other former and current employees, including Charging Party 2, who was then a current employee. In May 2017, Charging Party 1 caused to be posted on Facebook two photos that appeared to show a company security guard sleeping on the job, including the captions, “Wow look at Colorado Professional security services hard at work.”

On several occasions in 2017, the company disciplined Charging Party 2 for being unkempt and not wearing the proper uniform. The disciplinary letters issued to Charging Party 2 included language prohibiting discussion of the discipline with coworkers or clients. After one such instance of discipline, Charging Party 2 posted a 23-minute live video on Facebook during work hours and while in uniform talking about the discipline for wearing improper shoes and the confidentiality provision in the disciplinary notice, referencing the wage-and-hour lawsuits, making crude and disparaging jokes and comments about a supervisor, and stating that by asking Charging Party 2 to sign something interfering with free speech, the conduct of the company’s officials was “against the United States Constitution and you need to be shot on sight.”

Soon after, the company discharged Charging Party 2, stating that Charging Party 2 was being discharged for insubordination, regularly being unkempt and not in the proper uniform, conflict of interest, and insidious remarks regarding the company name, business, and security officers while on duty and in uniform. The company also filed a state court lawsuit against Charging Party 1 and Charging Party 2, alleging that their Facebook posts constituted defamation and interference with business relations. Thereafter, Charging Party 1 and Charging Party 2 filed unfair labor practice charges with the NLRB.

The Division of Advice’s Findings

The Division of Advice concluded that the policy prohibiting employees from criticizing the company and the standard disciplinary letter language prohibiting employees from discussing their discipline with coworkers or clients violated the National Labor Relations Act. The Division of Advice found that under the NLRB’s Boeing decision, these were Category 2 rules that violated the Act because the impact on employees’ right under the NLRA to engage in protected concerted activity outweighed the company’s business justification. The Division of Advice found that by prohibiting any public criticism of the company or its management, the company was expressly interfering with any appeals by employees to the public in labor disputes, and the company did not have a legitimate business justification for that kind of total ban. Regarding the disciplinary letter language, the Division of Advice concluded that by prohibiting employees from discussing their discipline with coworkers and clients, the company was expressly interfering with the right of employees to communicate with each other or third parties on a central term of employment, without any legitimate business justification for doing so.

However, the Division of Advice found that the discharge of Charging Party 2 did not violate the Act. The Division of Advice found that although Charging Party 2 was discharged, at least in part, for violating the unlawfully overbroad rules, the discharge was not unlawful because the Facebook video did not constitute protected concerted activity and it was so egregious that other employees would not connect Charging Party 2’s discharge to the overbroad aspect of the rules. The Division of Advice found that although Charging Party 2 referred to subjects in the video that could have been relevant to employees’ mutual aid or protection, the comments were entirely individual complaints and there was no indication that Charging Party 2 was speaking for other employees or seeking to act in concert with others. The Division of Advice also noted that Charging Party 2’s crude and disparaging jokes and comments about the supervisor were so egregious that Charging Party 2’s coworkers would not connect the discharge to the overbroad aspect of the rules, thus mitigating any chilling effect on potential NLRA-protected activity by employees.

The Division of Advice also found that the employer’s defamation lawsuit against the Charging Parties did not violate the NLRA. The Division of Advice noted that the Supreme Court has held that the NLRB can enjoin as an unfair labor practice the filing and prosecution of a lawsuit only when the lawsuit lacks a reasonable basis in law or fact and was commenced with a retaliatory motive. Advice found that although the company’s lawsuit was baseless (Advice noted that the company had failed to plead in the lawsuit that the allegedly defamatory statements were made with malice or to plead any specific damages suffered by the company), the lawsuit was not unlawful because it was not directed at any protected concerted activity and had not been otherwise shown to retaliate against the Charging Parties’ protected conduct. In reaching this conclusion, Advice noted that the lawsuit came soon after the Charging Parties’ Facebook posts and almost one year after the wage-and-hour lawsuits were filed.

Takeaways for Employers

The Advice Memo drives home that point that employers would be well-advised to review their policies, handbooks, and standard disciplinary notice language to ensure that they do not contain any language that runs afoul of the National Labor Relations Act. The Advice Memo is also a reminder for employers that whether an employee’s actions constitute protected concerted activity is a highly fact-specific inquiry and is often a close question. The Memo also provides guidance on the circumstances under which a lawsuit filed against a current or former employee might be found to be an unfair labor practice charge. Employers with questions about any of these issues should contact labor counsel.

By Monica Rodriguez

Seyfarth Synopsis: The Board narrowed the circumstances of when a successor employer will be a “perfectly clear” successor.  An employer will no longer be forced to bargain prior to setting the initial terms of employment if the employer engaged in discriminatory hiring practices as to some, but not all, of the predecessor’s former employees.

In Ridgewood Health Care Center, Inc., 367 NLRB 110 (2019), the Board narrowed the scope of when an employer acquiring a unionized company is a perfectly clear successor, such that the successor employer is required to bargain prior to setting the initial terms of employment.  In doing so, the Board overruled precedent established in 1996 in Galloway School Lines, 321 NLRB 1422 (1996).

“Perfectly Clear” Successor Doctrine

The employer acquiring the unionized company is a successor employer that is obligated to recognize and bargain with the union if the operations continue without substantial change and a majority of the new employer’s employees are the predecessor’s employees.

A successor has the right to set initial employment terms before bargaining with the union, unless it is a “perfectly clear” successor.  A “perfectly clear” successor is required to bargain with the union prior to setting initial terms of employment and honor the terms of the CBA negotiated by the predecessor.

A new employer is a “perfectly clear” successor only when the new employer indicates that it will hire all (or substantially all) of the predecessor’s employees.  However, an employer will also be required to bargain with the union prior to setting the initial terms if the employer actively or, by tacit inference, misled employees into believing that they would all be retained without changes to their wages, hours, or conditions of employment.

In Love’s Barbeque, 245 NLRB 62 (1979), the Board held that a new employer is not permitted to set the initial employment terms and conditions without first consulting the union if the new employer engaged in unlawful hiring practices against “all” or “substantially all” of the predecessor’s unit employees.

The Board in Galloway, expanded Love’s Barbeque’s holding so that an employer would be a perfectly clear successor if an employer discriminatorily failed to hire “some” (as opposed to “all” or “substantially all”) predecessor employees in order to avoid bargaining.

Overruling of Galloway

The Board found that Galloway and its progeny “went far beyond the limits of the narrow ‘perfectly clear successor’ exception contemplated by the Court.”  The Board rejected the notion that all employers who discriminate in any degree in the hiring process are “perfectly clear successors.”  The Board noted that this finding “goes too far” and undercuts the fundamental economic rationale for permitting successor employers to set initial employment terms.

The Board noted that many successors take over a distressed business that must undergo fundamental and immediate changes in employment to survive.  So, retroactive imposition of the predecessor’s employment terms on an employer who engages in discriminatory hiring practices runs counter to the principle that initial terms must generally be set by “economic power realities.”

Application To Ridgewood                             

In Ridgewood, the President and Owner of the successor employer announced to the predecessor’s employees that she expected to hire “99.9%” of them and to adhere to the predecessor’s CBA.  This message was contradicted by the successor employer’s counsel.  Even after announcing to the predecessor’s employees that they would be laid off, the President continued to assure the predecessor’s employees that 99.9% of them would be hired.  She later changed her position.

During the hiring process, the successor employer questioned the predecessor’s employee applicants whether they were Union members.  Only 49 former employees were hired out of a total of 101 employees hired.  The successor employer did not hire four of the former bargaining unit member employees who had applied for the position, which the Board found unlawful in light of the antiunion animus.  The predecessor’s employees would have constituted a small majority of the new employer’s workforce had the four former bargaining unit member employees been hired.

Because neither the complaint or the underlying charges alleged a violation based on the President’s comments as a theory, the Board did not analyze the comments and did not reach a finding that the new employer was a perfectly clear successor.  The Board focused solely on the number of former employees who applied to work for the successor, the four employees who the successor denied employment, and the absence of claims that others were discriminatorily denied the opportunity to apply for employment.  Based on this information, the Board found that there was no uncertainty whether the successor would have hired all or substantially all of the predecessor’s employees.  Thus, the successor maintained its rights to set the initial employment terms before bargaining with the union.

Employer Take Away

This case will make it easier for employers acquiring unionized workforces who are successors that they  have the right to set the initial employment terms without first having to bargain with the union.  While the Board did not analyze the employer’s statements to employees, successor employers should be careful in their communications to the predecessor’s employees.

By: Robert Fisher, Jeffrey Berman, Skelly Harper and John Ayers-Mann 

Seyfarth Synopsis: An important issue for colleges and universities is whether faculty are “managerial” employees under the National Labor Relations Act, and thus precluded from union organizing.  Almost 40 years ago, the Supreme Court held in NLRB v. Yeshiva University that faculty are managerial if they exercise “collegial” authority collectively in academic matters.  Five years ago, the Obama Board in Pacific Lutheran University announced a new two part standard for determining the managerial status of faculty members:  (1) whether faculty have decision-making authority in academic programs, enrollment policies, finances, academic policies, and personnel policies; and (2) whether the faculty exercise “actual control or effective recommendation” over each of those areas. 

On March 11, 2019, the Court of Appeals for the D.C. Circuit denied enforcement of the Board’s application of Pacific Lutheran to non-tenure track full- and part-time faculty at the University of Southern California’s Roski School of Art and Design.  The Court remanded the case back to the Board to reconsider its application of Pacific Lutheran.

The case began when Service Employees International Union, Local 721 filed a petition to represent a bargaining unit of full- and part-time non-tenure track faculty member of the Roski School.  USC argued that non-tenure track faculty members were managerial employees because they sat on committees responsible for making decisions in each of the five areas identified in Pacific Lutheran.  After a hearing, the Regional Director, concluded that USC failed to show that the faculty members exercised the requisite control because they represented a minority on those committees.  SEIU won the subsequent election, and USC refused to bargain with the Union in order to challenge the managerial issue.

On appeal to the D.C. Circuit, USC argued that the Board decision conflicted with the Supreme Court’s Yeshiva decision in two ways.  First, USC argued broadly that Pacific Lutheran’s two-part standard also ran afoul of Yeshiva. The Court disagreed.  While cautioning that the Board must be sensitive to the notion of collegial managerial authority, the D.C. Circuit concluded that the two-part standard for effective control did not necessarily contravene the Supreme Court’s Yeshiva decision.

Second, USC challenged the  requirement that faculty subgroups must hold a majority of seats on a committee in order to have effective control.  The Court agreed with the university that this was inconsistent with Yeshiva. The D.C. Circuit reasoned that this aspect of Pacific Lutheran failed to view faculty as a collective body of decision-makers and ignored the potential for commonality among faculty.  The Court emphasized that Yeshiva did not focus on whether one group outnumbered another, but on whether the subgroup was vested with managerial responsibility.

The Court of Appeals granted in part USC’s petition to review and remanded the matter to the Board to undertake review based on a standard more faithful to the Supreme Court’s Yeshiva decision.  The remand could give the newly-constituted Republican majority of the Board an opportunity to reconsider the Pacific Lutheran standard altogether.  Further, while unions have been targeting non-tenure track faculty for organizing in light of that standard, the D.C. Circuit’s decision strengthens arguments that those faculty may be managerial under Yeshiva, particularly where they have the opportunity to participate in committees and other faculty bodies responsible for academic programs.

By Tiffany Tran

Seyfarth Synopsis: In another employer friendly decision, the NLRB explicitly overruled an Obama administration precedent in emphasizing the importance of entrepreneurial activity and returned to the traditional common law test to evaluate independent contractors under the NLRA.

On January 25, 2019, the NLRB returned to its pre-2014, “traditional” common law test for determining the employment relationship issued in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019). SuperShuttle DFW franchisee drivers in the Dallas-Fort Worth Dallas area sought to unionize under the National Labor Relations Act (NLRA). However, the company treated its drivers as franchisees and were classified as independent contractors. The franchisee drivers bought the franchise from the company, supplied their own vans, and paid their own business expenses. The franchisee drivers were  free to set their schedules, hours of work, and which rides to accept (although they may be fined for accepting a ride and not completing the pickup). The franchisee drivers kept all revenue made from their rides and could even hire additional drivers.  The company charged certain fees to cover benefits provided by the company, such as the SuperShuttle brand, marketing, and use of dispatch system.

In analyzing whether the SuperShuttle franchisee drivers were independent contractors, or employees afforded protection under the NLRA (such as the right to unionize), the NLRB focused on their “entrepreneurial opportunity” for economic gain or loss.  In so doing, the Board explicitly overturned the Obama administration’s 2014 decision in FedEx Home Delivery, which severely limited the significance of a worker’s entrepreneurial opportunity for economic gain in determining the employment relationship under the NLRA. The NLRB emphasized in this decision that entrepreneurial opportunity has “always been at the core of the common-law test.”

Applying these principles, the NLRB found that franchisee drivers had significant opportunity for economic gain due to their autonomy in setting their work schedules, their discretion to own or lease vans, and other decisions that drove the amount of revenue they take in.  The NLRB also noted that the company did not supervise the work of the franchisee drivers and that the parties themselves understood that the franchisees were independent contractors. As such, the Board affirmed the Acting Regional Director’s 2010 determination that the SuperShuttle drivers were independent contractors and had no right to unionize under the NLRA.

This ruling has implications for a wide range of businesses, especially those in the gig economy who use independent contractors to perform work.  However, this ruling is limited to protections under the NLRA and may not have much impact on state worker classification for wage and hour purposes. For instance, California employers must still grapple with the California Supreme Court’s decision in Dynamex Operations v. Superior Court regarding worker classification for Wage Order claims (see Seyfarth’s discussion about the Dynamex case here). Please contact your favorite Seyfarth attorney to discuss how this ruling may impact your business.

By John Ayers-Mann

Seyfarth Synopsis: The NLRB has overturned a previous decision defining any employee’s protest in a group setting as protected concerted activity. In Alstate Maintenance, the Board has sought to adhere to the principles defining protected concerted activity set forth in the Meyers decisions.

The Board majority has shown no signs of slowing in 2019 as it continues to drive national labor policy.  The Board’s recent decision in Alstate Maintenance and Trevor Greenidge, Case 29–CA–117101 (Jan. 11, 2019) ( illustrates the Board’s continuing trend of limiting expansive precedents.

In Alstate Maintenance, the Region issued a complaint alleging that Respondent Alstate Maintenance violated the Section 8(a)(1) of the NLRA when it discharged its employee, Trevor Greenidge.  Greenidge was employed as a skycap at an international airport, and part of his responsibilities included assisting arriving passengers with their luggage.  On July 17, 2013, Greenidge’s supervisor assigned him to assist with a soccer team’s equipment.  Greenidge complained that, “we did a similar job a year prior and we didn’t receive a tip for it.”  When the van containing the team’s equipment arrived, the skycaps refused to assist with moving baggage.  The skycaps were subsequently discharged.

In its complaint, the Region contended that Greenidge’s comment to his supervisor constituted protected concerted activity under the NLRA.  Particularly, the Region argued that Greenidge’s use of the pronoun “we” in a group setting compelled a finding that his activity was concerted.  The Administrative Law Judge reviewing the case disagreed and dismissed the Region’s complaint.  The General Counsel appealed.

On appeal, the Board focused its review on whether Greenidge’s activities were concerted.  In its analysis, the Board reiterated the standards announced in the Meyers decisions.  The Board explained that for activity to be concerted, it must assert a truly group complaint and appear to be intended to induce group action.  The Board noted that the decisions following the Meyers cases evaluated the totality of the circumstances to determine whether the activity was concerted.  Some circumstances that counseled in favor of a finding of concerted activity included whether the comment was made in a group setting, whether the concerns are personal or on behalf of a group, and whether the meeting presented the first opportunity to address the employer’s policy.  General Counsel relied on a Board decision in Worldmark by Wyndham (“Worldmark”), where the Board found that an employee’s protest in the context of a group meeting rendered the complaint per se concerted activity.

After reviewing a line of decisions where the Board applied the Meyers standards, the Board found Worldmark’s precedent problematic.  The Board reasoned that because Worldmark equated protest in a group setting with per se concerted activity, the decision ran afoul of Meyers because it failed to require consideration of the totality of the circumstances.  Accordingly, the Board overruled Worldmark.

Applying Meyers to the instant case, the Board first found the record devoid of any evidence of a group complaint, and that Greenidge’s use of the word “we” was insufficient to find an intent to bring a complaint on behalf of a group.  Second, the Board explained that the statement did not demonstrate that Greenidge was seeking to induce group activity, and that Greenidge admitted he was not attempting to change Respondent’s policy.  Thus, because Greenidge’s complaint was not concerted, it was not protected under the NLRA.

The Board’s decision provides further clarification for employers approaching employee complaints in a group setting.  The decision indicates that the Board will take a more flexible approach of considering the totality of the circumstances, rather than taking the narrow approach urged by Worldmark of finding any complaints in a group setting to constitute per se concerted activity.

By:  Paul Galligan and Samuel Sverdlov

Seyfarth Synopsis: The NLRB’s Office of General Counsel has issued an Advice Memorandum stating that an employer lawfully refused a union’s information request regarding its tax cut savings during bargaining.

During collective bargaining, employers often deal with an uncomfortable dilemma — comply with invasive and overbroad information requests from unions or withhold information, and risk Board litigation.  However, in a recent Advice Memorandum, the NLRB’s Office of the General Counsel channeled its inner Mick Jagger, and told the union, no, you can’t always get what you want … you get what you need.  Specifically, the GC’s office concluded that an employer did not violate Section 8(a)(5) of the NLRA by refusing to provide the union with information concerning the its tax cut savings because the information was neither relevant nor necessary to the union’s performance of its statutory functions.


On December 22, 2017, President Trump signed into law the Tax Cuts and Jobs Act of 2017 (TCJA).  Among other features, the law cut corporate tax rates from 35% to 21%.  In response to the new law, Nexstar Media Group, Inc. sent a memo to its employees announcing that the that the company wants to extend its benefits from the TCJA to its employees via a one-time bonus, and increase to the employees’ 401k plan company match.  This benefit, however, was not extended to Nexstar’s unionized employees whose collective bargaining agreements were open for negotiation.

While the parties were bargaining for successor contracts, the union sent Nexstar a broad information request regarding the company’s financial gains from the TCJA.  The union prefaced its request by stating that Congress intended the TCJA’s corporate tax cut to trickle down to workers’ paychecks and return jobs to the USA, and invited Nexstar to “join it” in implementing Congress’ goals through bargaining.  The union then proceeded to request a deluge of information regarding Nexstar’s financial information, employment of foreign employees, political contributions, etc.  Nexstar refused to provide the information, and the union responded by filing a charge under Section 8(a)(5) of the NLRA.  (The Regional Director then sent the issue to the Division of Advice for a recommendation.)

Advice Memorandum

The GC’s office was unpersuaded by the union’s argument that the information was necessary to: (1) ensure, through bargaining, that Nexstar’s benefits from the TCJA went to workers’ paychecks and returning jobs to the United States; and (2) to aid the union in bargaining about bonus payments and increased 401(k) contributions. The GC’s office rejected the union’s first argument because the goals of the TCJA are not sufficiently related to the union’s collective bargaining relationship with Nexstar — the union could not identify any provision of the TCJA either requiring Nexstar to spend its tax savings towards the union’s preferred objectives or giving the union a right to enforce the statute.  Next, the GC’s office rejected the union’s second argument because the requested information is not necessary to either frame the union’s proposals, evaluate and respond to the Nexstar’s proposals, or verify any of Nexstar’s factual assertions in support of its bargaining positions.  The GC’s office reasoned that Nexstar’s memorandum to its employees did not contend that Nexstar’s ability to grant benefits to union employees was impacted by its tax savings in any way.  Accordingly, the GC’s office concluded that Nexstar did not commit a violation of Section 8(a)(5).

Employer Takeaways

This Advice Memorandum is encouraging for unionized employers.  If the GC’s office had found Nexstar’s conduct to be unlawful, it could have opened a floodgate of invasive requests from union’s regarding employers’ tax cut savings information during collective bargaining.  However, employers should take this decision with a grain of salt and continue to evaluate each union information request carefully.  Employers are reminded to consult experienced labor counsel during collective bargaining.

On December 28, a panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit), in a 2-1 decision (Browning-Ferris Indus. of Cal. v. NLRB, No. 16-1028), invalidated the National Labor Relations Board’s (NLRB or Board) controversial joint employer test adopted in Browning-Ferris, 362 NLRB No. 186 (2015) (Browning-Ferris). The Court remanded the case back to the Board for further proceedings consistent with its opinion.

Joint employer status potentially can exist under the National Labor Relations Act (NLRA) — and other employment laws — in a variety of circumstances including labor user-supplier, parent-subsidiary, contractor-subcontractor, franchisor-franchisee, predecessor-successor, creditor-debtor, and contractor-consumer relationships.

The Board’s joint employer doctrine is significant because a unionized joint employer has or shares an obligation to collectively bargain over those employment terms it controls or jointly controls. Similarly, a union or non-union joint employer may be found to have committed unfair labor practices within the scope of its control over the workplace. Additionally, under the NLRA, a union can engage in certain forms of picketing, secondary boycotts, or other economic protest activity against an entity determined to be a joint employer instead of a neutral third party.

In Browning-Ferris, the Board majority (3-2) held that even when two entities never have exercised joint control over essential employment terms, and even when any such joint control is not “direct and immediate,” they still will be joint employers based on the existence of unexercised “reserved” joint control or “indirect” control, including control that is “limited and routine.”

In reviewing Browning-Ferris, the D.C. Circuit majority (i.e., Judges Patricia Millett and Robert Wilkins) held that the NLRB “can” consider indirect control and unexercised reserved control as joint employer factors; and, if so, has flexibility in determining what weight to give those factors. As a result, a future Democratic NLRB will have the ability to recognize at least some concepts of indirect and/or reserved control as relevant to joint employer analysis. However, in invalidating the Browning-Ferris formulation, the Court found that the Board’s current test failed to adequately distinguish between indirect control over employment terms and influence or control over “routine” matters related to the formation and maintenance of contractor arrangements. The D.C. Circuit identified cost-plus billing, cost containment measures, providing an “advance description of tasks,” setting basic parameters of performance, and developing contractor “objectives” and “expectations” as examples of actions which — although they may indirectly control or influence a putative contractor’s employees — are not pertinent to a joint employer assessment. The Court sent the case back to the Board to “erect some legal scaffolding that keeps the inquiry within traditional common law bounds.”

The D.C. Circuit also concluded that a remand to the Board was required because the Browning-Ferris decision did not delineate what constitutes “meaningful” collective bargaining — either in general, or with respect to Browning-Ferris’ particular circumstances. In other words, the Court found that the NLRB had not sufficiently explained what employment terms Browning-Ferris co-controlled which made “meaningful” bargaining possible. The Court also appeared to be indicating that the Board needed to address the parameters of any bargaining related to the contours of a joint employer relationship itself, e.g., allocation or reallocation of bargaining obligations between the joint employers.

Although the Court rejected the argument that substantial direct control is the most important factor in any joint employer analysis, the Court found that Browning-Ferris did not present facts as to whether reserved (or indirect) control apart from any actual control alone could result in a joint employer finding. As a result, that question seemingly remains open and unresolved.

In dissent, Judge A. Raymond Randolph criticized the majority for issuing its decision given that the NLRB is presently undertaking joint employer rulemaking. Judge Randolph also considered the majority to have misconstrued the governing common law control concepts.

The D.C, Circuit’s decision will be far from the last word in the joint employer controversy. Apart from the NLRB having been ordered to reformulate the Browning-Ferris test for application to, at least, Browning-Ferris, the Board is engaged in comprehensive joint employer rulemaking which could supersede any test to be developed through case adjudication.

If you would like further information, please contact Seyfarth Shaw at

By: Monica Rodriguez, Esq.

Seyfarth Synopsis: In September 2018, the NLRB released its new proposed rule regarding the joint employer standard. The NLRB extended the comment period twice since the release of the new proposed rule. Comments are now due on or before January 14, 2019.

Individuals waiting on pins and needles in anticipation of the outcome of the new proposed joint employer rule will have to wait a bit longer.

On September 14, 2018, the NLRB published its new proposed rule, which Seyfarth discussed here and here. The new proposed rule attempts reverse the joint employer rule created by the Obama Board in 2015. Under the proposed rule, for another employer to be a joint employer, the other employer must possess and exercise substantial, direct and immediate control over the essential terms and conditions of employment in a manner that is more than merely “limited and routine.” Indirect influence of the terms and conditions, contractual reservations of authority never invoked, and mere “limited and routine” authority are insufficient.

Since publishing the rule for comment, the NLRB has twice extended the deadline to submit comments. The new deadline to submit comments is January 14, 2019. The deadline to reply to comments submitted is January 22, 2019. The number of comments submitted is 25,543 and counting.

If you would like to submit a comment or have a comment drafted and submitted on your behalf, please contact your Seyfarth attorney.