Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

NLRB Gives Employers Greater Ability to Discipline Abusive Conduct

Posted in Employee Discipline

Employees probably just lost the ability to tell their boss to f*** off.  When considering an employee’s protected activity, the NLRB recently changed its tune on how it analyzes employer discipline—and an employee engaging in abusive conduct does not have the same protections the employee once did.

The NLRB announced this change of tune in last Tuesday’s General Motors decision.  Before General Motors, the NLRB held in numerous cases that an employer could violate the NLRA for disciplining an employee for abusive conduct that occurred while the employee was also engaged in protected activity, even when the discipline was for the abusive conduct and not the protected activity.  Some of the more notable decisions in this genre involved discipline of employees for hurling profanity at an owner, posting insulting social media messages about a manager, and yelling racist remarks at a replacement worker.

Moving forward, though, the NLRB has decided to give employers a greater ability to discipline abusive conduct, regardless if it is connected with an employee’s protected activity.  In General Motors, the NLRB adopted the Wright Line standard to analyze employer discipline related to protected activity.  Under the Wright Line standard, the General Counsel can still allege an NLRA violation when an employer disciplines an employee engaged in protected activity.  But now, employers have a more defined ability to rebut this allegation.  Employers only need to show that the discipline for an employee’s abusive conduct would be the same under any circumstances, even if the employee was not engaged in a protected activity.

Previously, the NLRB applied a patchwork of setting-specific standards—whether an employer could punish abusive conduct may have depended on whether the employee was negotiating compensation, discussing union representation, or picketing.  Now, though, the Wright Line standard applies in all cases.  And where these previous standards meant employers often had little recourse—even when an employee was disloyal or used profane, racist, or sexist language—the Wright Line standard gives employers a greater ability to discipline abusive conduct.

For the labor professional, the General Motors decision brings good news—an employer can more readily maintain a civil workspace.  Now, an employer can discipline an employee’s abusive conduct with less fear of violating the NLRA.  Additionally, the NLRB also plans to apply retroactively the Wright Line standard to all pending cases.

At the same time it gives employers a greater ability to discipline abusive conduct, the NLRB’s decision also highlights an employer’s responsibilities related to any abusive conduct.  Equal employment opportunity law requires an employer to take prompt corrective action against any discriminatory or harassing conduct.  With this in mind, an employer should be mindful of enforcing existing prohibitions against abusive, harassing, or discriminatory conduct.  Employers will not have the NLRB to blame for inaction on this front in the future.

*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.

NLRB Suggests Safety Protocols for In-Person Union Elections

Posted in Elections

After the COVID-19 pandemic caused a temporary suspension of both in-person and mail ballot labor union elections, the NLRB permitted elections to resume in early April.  On Tuesday, July 6, the General Counsel issued guidance addressing suggested safety protocols for conducting manual elections.  As the COVID-19 pandemic continues to evolve, the General Counsel acknowledged the pandemic’s varying impact on different localities.  With this in mind, the General Counsel empowered Regional Directors to make election decisions on a case-by-case basis.

Even while acknowledging the unpredictability of these unprecedented times, the General Counsel still suggests specific safety protocols for manual elections.  Many of these suggestions are consistent with precautions being encouraged for everyday activities⁠—social distancing, enhanced cleaning, plexiglass barriers, and masks.  Also, for the polling facility, the General Counsel suggests arrangements such as a spacious polling area, separate entrance and exit doors, floor markings for social distancing, and disposable supplies.

In addition to these safety protocols, the General Counsel suggests employer record keeping before and during a manual election.  Before an election, the employer would be required to certify how many individuals who have been present in the polling facility (during the 14 days prior to the election) tested positive for COVID-19, are awaiting COVID-19 test results, exhibited COVID-19 symptoms, or had direct contact with someone who tested positive for COVID-19.  The employer should record the same information for individuals present in the polling facility on the day of the election.  The General Counsel’s guidance includes forms that employers would use to provide the certifications.

For the labor professional, the General Counsel’s suggestions are worth an employer’s attention.  In-person elections are an important tool to ensure the exercise of free employee choice on the question of union representation.  To maximize the ability to utilize that tool, therefore, an employer may want to proactively establish systems that would allow it to implement the suggested safety protocols, particularly if union organizing is a significant concern for the employer.

It is important to note, as the General Counsel acknowledged in the guidance, that the NLRB itself has the “ultimate authority” to decide when, how, and in what manner manual elections are conducted.  So, any employer (or union for that matter) in a representation proceeding that has concerns with the way in which a regional office conducted the election will want to consult with qualified labor counsel to determine whether objections should be filed so as to, ultimately, bring those questions to the NLRB’s attention.

*John J. Osinski, a Summer Associate at Vorys, Sater, Seymour and Pease, LLP, and a law student at The Ohio State University Moritz School of Law, co-authored this post.

NLRB Affirms that Employers May Prohibit Employees from Discussing Ongoing Investigations

Posted in Employee Discipline

Hard to believe these days, but non-Covid-19-related developments do still pop up from time-to-time.  Last week, the NLRB gave us one on an issue the employer community has closely watched:  whether an employer can instruct employees to keep an open internal investigation confidential.

The NLRB answered with a clear “yes” in Securitas Security Services USA.  The decision is one of the first in which the NLRB has applied the revised standard for confidentiality rules for ongoing investigations articulated in December 2019 in Apogee Retail LLC, 369 N.L.R.B. No. 144 (2019). Continue Reading

Covid-19 and the NLRB: Effective Date of New “Election Protection” Rule Postponed

Posted in Elections, Rulemaking

Labor professionals waiting for the new rule on certain employee free choice issues to go into effect will have to wait a little longer.  The NLRB announced on Wednesday that it is delaying the effective date of this rule for 60 days, until July 31, 2020, due to the COVID-19 pandemic.

The NLRB published the election rule on April 1, 2020.  The rule was originally scheduled to go into effect on June 1, 2020.  As we previously explained, the election rule will eliminate the longstanding practice that a ULP charge will “block” the election (that is, prevent it from going forward).  The rule will also require employers who voluntarily recognize a labor union to notify employees of the recognition and will change the standard for recognizing unions in the construction industry.  The NLRB has stated that it believes that these amendments would better protect employees’ statutory right of free choice concerning union representation.

The two-month delay in implementing the election rule provides just one more example of how the COVID-19 pandemic has disrupted the NLRB’s operations.  In addition to delaying the election rule, the pandemic caused the NLRB to close or partially close regional offices and to suspend union elections for two weeks.

NLRB Resuming Union Elections on Monday

Posted in Elections, Union Organizing

It’s back to business for the NLRB, at least when it comes to representation elections.  The NLRB announced today that it would not extend its temporary suspension of elections past this Friday, April 3, 2020.  The NLRB will resume conducting elections on Monday.

The NLRB had temporarily suspended NLRB elections on March 19, 2020 due to the COVID-19 pandemic.  The suspension applied to both in person and mail-in elections.  The NLRB stated that suspending elections was necessary to ensure the health and safety of its employees, as well as the health and safety of the members of the public involved in elections.  Additionally, when this order was released, several regional offices were closed while employees at other locations were teleworking— causing the NLRB to believe that it was impossible to effectively conduct elections.

The NLRB’s decision to freeze union elections was not without criticism.  Congressman Bobby Scott (D – Va.), a member of the Education and Labor Committee, sent a letter to Chairman John Ring (R) urging the NLRB to reverse the suspension of election procedures.  Scott explained that the COVID-19 pandemic had imposed an extraordinary strain on labor relations.  Scott also asserted that the NLRB had failed to protect workers’ rights of association and self-organization by suspending election procedures.

With regards to resuming election procedures on Monday, Chairman Ring explained that the two-week closure had allowed the NLRB’s General Counsel, Peter Robb, to review the existing logistics of the election procedures in light of COVID-19.  Based on this review, the General Counsel had determined that measures are available that will ensure that elections may resume in a safe and effective manner.  Chairman Ring did not explain what these “measures” will be but noted that they would be implemented by the Regional Directors.

For labor professionals, the NLRB’s decision to resume elections may be a welcome return to normalcy—or could be another strain on business.  Regardless, labor professionals should be aware that elections procedures likely will be altered to prevent the spread of COVID-19 and that the NLRB is attempting make the elections as safe as possible.

Covid-19 and the NLRB: Update No.3 – Rulemaking Continues

Posted in Elections, Rulemaking

While Covid-19 has slowed down certain things at the NLRB, it hasn’t stopped the agency from functioning.  The NLRB announced today that it will publish its final rule on certain employee free choice issues tomorrow, April 1.

The rules will address three major issues:

  1. The NLRB’s “Blocking Charge” Policy.  The term comes from the NLRB’s long-standing rule that if a union filed a ULP charge while an election proceeding was pending, it would usually serve to “block” the election – i.e., prevent it from going forward.  The ULP charge would then need to be resolved before the regional office could hold the election.  The rule is expected to replace the blocking charge with a “vote-and-count” or “vote-and-impound” procedure.
  2. Voluntary Recognition Bar.  The rule is expected to return to the holding in Dana Corporation, a 2007 NLRB decision.  It would apply when an employer, as is its right, voluntarily chooses to recognize a labor union.  In that situation, employees in the voluntarily recognized bargaining unit must receive notification of the recognition and be given a 45-day open period in which to file an election petition.
  3. Section 9(a) Recognition in the Construction Industry.  Employers in the construction industry are subject to some unique rules regarding recognition of unions.  One such rule is the ability to enter into what is known as a “pre-hire” agreement – where the employer and union agree to recognition before a single employee has even been hired.  Where this has occurred, the NLRB’s new rule will require positive evidence of majority support for the union, and not merely union contract language reciting same, before the NLRB will bar a petition for an NLRB-supervised election.  The rule will overturn a 2001 decision holding to the contrary.

Labor professionals should certainly review the rule in full when it is published, particularly if the employer is considering, or a union has requested, voluntary recognition, or there is a pending election petition.  Likewise, labor professionals in the construction industry will need to familiarize themselves with the NLRB’s new standards.

COVID-19 and the Duty to Bargain: Advice from the General Counsel

Posted in Negotiations, NLRB

With COVID-19 disrupting business, employers may be questioning whether the virus has an effect on the duty to bargain with labor organizations.  On Friday, the NLRB’s General Counsel, Peter B. Robb, attempted to answer these questions, issuing a letter to regional officials clarifying employers’ duty to bargain during emergencies.

The General Counsel’s letter summarized nine NLRB decisions involving a variety of emergencies, including hurricanes, 9/11, ice storms, and credit shortages.  The General Counsel explained that it was his “hope that these summaries prove useful to those considering this issue during these challenging times.”  Notably, the letter did not summarize any cases involving shutdowns or closures due to illness or infectious disease.  Nor did the letter provide any advice to employers specific to the current pandemic.

The General Counsel’s letter is divided into two sections.  The first section summarizes cases that involving public emergencies.  For example, the letter summarizes Port Print & Specialties, a case from 2007 in which the NLRB found that an employer did not violate Section 8(a)(5) of the NLRA when it laid off employees in anticipation of an impending hurricane.  The NLRB explained that one exception to the duty to bargain with a labor organization is an “extraordinary event[] which [is] an unforeseen occurrence, having a major economic effect requiring the company to take immediate action.”  The NLRB fit a hurricane into this category.  The NLRB also found that the employer later violated Section 8(a)(5) by failing to bargain over the effects of the layoff and by using non-unit employees to perform unit work after the hurricane had passed. Continue Reading

A Stimulus for Organized Labor

Posted in Union Organizing

Here’s one you may not have heard about yet.  Buried in the last 100 pages or so of the 600+ page CARES Act, the Covid-19 bill the Senate passed this morning, I found this nugget:

(X) that the recipient will remain neutral in any union organizing effort for the term of the loan.

For the lawyers reading this, the provision appears in Title IV, Section 4003(c)(3)(D).

The requirement appears to be applicable to loans made to businesses with between 500 and 10,000 employees.  The quoted provision appears in a list of items that an “eligible borrower” must provide a “good-faith certification” of in connection with an application for a loan under the program.  What the required certification to “remain neutral” actually means is unclear.

This is not the only union-related requirement.  A loan recipient is required to give a similar certification that it will not “abrogate existing collective bargaining agreements” during the term of the loan and for a period of two years after completing repayment of the loan.

Labor professionals will certainly want to take note of these provisions.  If the employer seeks a loan under the applicable program, there could be some clear implications for labor relations strategy, whether or not the employer is unionized.

Covid-19 and the NLRB: Update No. 2 – Election Rule Delayed

Posted in Elections, Rulemaking

Today, the NLRB announced that it will delay its new election rule.  This follows on the heels of the NLRB’s decision last week to delay election proceedings generally due to the Covid-19 situation.

As readers of this blog know, the NLRB published its final election rule in December last year.  The rule’s net effect was to substantially alter the so-called “quickie” or “ambush” election rule adopted by the Obama NLRB in 2014.  The new rule extended various deadlines in a union election to provide for more time for the parties to take certain actions required to process an election petition.

In announcing the delay, the NLRB explained that it was doing so to “facilitate the resolution of legal challenges” to the rule.  The AFL-CIO has filed a lawsuit in federal court in Washington, D.C. contesting the rule.  The rule is now set to go into effect on May 31, rather than April 16, 2020.

The NLRB and Covid-19: An Update

Posted in NLRB, Rulemaking

Covid-19 has disrupted the operations of many employers and governmental functions.  The NLRB is no different.  Here is a summary of where things stand tonight.

Regional Offices

Many regional offices have been closed for varying periods of time.  The NLRB is sending out updates on these events as they occur and has devoted a page on its website that labor professionals can use to quickly determine the status of a particular regional office.  As of the end of the day Friday, there were 12 regional offices closed, with staff working remotely.  One of the closed offices is Region 8 in Cleveland, Ohio.

Elections

The NLRB has suspended all representation elections until April 3.  Interestingly, this even includes mail ballot elections.

Rulemaking

The NLRB is working on a few proposed rules.  The NLRB website summarizing them is here.  So far, the NLRB has not announced any specific delays or extensions related to this rulemaking activity.  The comment period on all of the proposed rules is closed, with the most recent one closing on February 28 for the rule regarding student assistants.

NLRB Decisions

The NLRB continues to issue decisions notwithstanding Covid-19.  Most recently, the NLRB held that an employer’s severance agreement containing certain common provisions was lawful.  The employer, after lawfully terminating numerous employees, offered them a severance agreement that contained various provisions.  Three provisions in the agreement were at issue:

  1. Non-disparagement;
  2. Confidentiality; and
  3. “No Participation in Claims.”

The NLRB held that the employer’s offer of a severance agreement containing these terms was lawful.  The NLRB rejected the use of its Boeing decision, saying it applied only to mandatory work rules, not to the terms of an agreement that an employee could voluntarily decide not to sign.