United States: The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

The end of September in most years sees a spate of new NLRB decisions, sometimes dozens, issued on or about September 30, to coincide with the end of the agency's fiscal year. Not so this past September 30 because of the recent changeover from a majority of Democrat Board Members to a majority of Republican Members. The buzz for the ten months since the change in Presidential administration has been how the NLRB might reverse or otherwise change many of the decisions handed down in the last several years, including the micro-unit case, the case mandating the production of witness statements, the right to use company email for union activity, as well as how the agency evaluates the lawfulness of employer policies. To name just a few. Other than reversing case law, the Board can influence the law in more nuanced ways. These changes to the way cases are analyzed may be as important, if not more important, than some of the much discussed cases of the last few years. The Board's influence in this regard is not so apparent but definitely worth keeping an eye on. In a recent case, the Board gave us clues about how two of the most common issues to come before the agency, –the evaluation of discriminatory motive in disciplinary cases and the evaluation of employer statements as "coercive"–, could be addressed differently in the coming years.

In Novato Healthcare Center, 365 NLRB No. 137 (September 29, 2017), a decision issued on the last business day of the fiscal year, the Board decided a fairly routine case involving unfair labor practices stemming from an organizing drive. The Board upheld an Administrative Law Judge's finding that the employer violated Section 8(a)(3) by suspending and terminating employees for their union activity. The Board also upheld the ALJ's finding that the employer had violated Section 8(a)(1) of the Act by interrogating a known union adherent. These issues are, of course, the very bread and butter of the agency's cases and the three Board members (Chairman Miscimarra, Pearce and McFerran) essentially agreed on most issues. However, in footnotes, the Board members argued over the proper analysis to apply to these issues and those glancing comments spell a huge difference of opinion.

Employer Motivation In Discrimination Cases – How Much Of A Connection Must There Be To The Employee's Protected Activity?

Under Section 8(a)(3) of the NLRA, an employer may not discriminate with regard to hire, tenure, or any term or condition of employment in order to encourage or discourage union membership. Most of the cases under this provision involve adverse action (i.e., discipline, suspension, discharge, etc.) of an employee who engages in union activity. The well established test for establishing a threshold case of the unlawfulness of the adverse action was set forth in Wright Line, 251 NLRB 1083 (1980), enf'd 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 955 (1982). Under Wright Line, the General Counsel must establish that a substantial or motivating factor in the employer's action against the employee was the employee's protected or union activity. These elements are often expressed as:

  1. The employee engaged in protected activity;
  2. Such activities were protected by the Act;
  3. The employer had knowledge of the union activity; and
  4. The adverse action taken against the employee was "motivated" by these activities.

The meaning of "motivated" is, of course, of crucial importance. Yes, there are cases where motivation is readily apparent, like when an employer basically states the reason for the discipline or other action is the union activity, but such cases are rare. Most of the time the employer's motive must be discerned by an evaluation of circumstantial evidence. Here, too, the general elements from which an inference of unlawful motivation are fairly well established: (a) timing (i.e., the elapsed time between protected activity and adverse action),-the shorter the time the greater likelihood the action was motivated by the protected activity; and issues related to employer's actions, such as (b) delay of discipline (suggesting it was wasn't taken in the normal course of business), (c) departure from established discipline procedures (always a red flag), (d) disparate treatment (always subject to dispute), (e) inappropriate or excessive penalty or (f) shifting reasons for the discipline. All of these latter events are unusual and from which one can infer the employer probably would not have taken the action absent the protected activity.

In this case, during a hard fought organizing campaign, the employer discovered four employees were asleep and terminated them. The ALJ noted the timing of the discipline in relation to the organizing was close (2 months) and noted that the investigation conducted by the employer was lacking (it didn't interview another supervisor who allegedly was present) and that there was evidence of disparate treatment in that no employee had been discharged for the same offense.

The three Board members agreed the General Counsel met its burden in establishing a threshold case. What they disagreed about is the standard for evaluating motivation. The majority stated that, "[t]he General Counsel is not required to 'demonstrate some additional 'nexus' between the employee's protected activity and the adverse action.'" Libertyville Toyota, 360 NLRB 1298, 1301, n. 10 (2014)(enforcement history omitted).

Chairman Miscimarra disagreed, stating he "believes [the General Counsel] must establish a link or nexus between the employee's protected activity and the employer's challenged adverse employment action." The Chairman noted that applying this standard the General Counsel met his burden of establishing a threshold case.

So what does all this mean? It's hard to say exactly because neither side evaluates the evidence under their stated framework. What is clear, however, is the remarks of the majority and the dissent evidence a potentially large gulf in interpretation of the proof the General Counsel must establish to make a threshold showing that the Act has been violated. One could see any one of the elements used to infer unlawful motivation being interpreted differently under the Chairman's standard of requiring a "nexus." For example, whether there exists "disparate treatment" is so fact intensive that one could see the Board deciding that the employer did what it often does: evaluates the particular facts in deciding the discipline. Or, that the two months between union activity and the discharge is not enough to establish a "nexus" under the Chairman's view of the world.

The recent change in majority make-up of the Board, could mean that the Board will apply a more exacting scrutiny to the the proof used by the General Counsel to establish a a violation of the Act. As most cases rely on a review of circumstantial evidence presented the difference between a "nexus" and not may be significant.

Not Every Question Asked During Organizing May Be Considered Coercive

The ALJ also found that the employer violated Section 8(a)(1) of the Act when, approximately one week before the union election, the employer's Director of Staff Development asked a known union supporter (one who was wearing a union lanyard and who openly spoke about support for the union) whether the employee was going to vote for the union in the election. The employee candidly replied that he was going to vote for the union. The employer then pointed out that having the union may cost the employee in dues; the employee replied that he was aware of the cost.

The ALJ found the question to constitute unlawful interrogation. The Board majority affirmed. The Board held that it has "long held" questions about how an employee intends to vote as "hav[ing] a uniquely coercive tendency." Further, the Board held that the employer's discussion "clearly" communicated the "preference" that the employee vote against representation.

Chairman Miscimarra saw the exchange differently. The Chairman would have found no violation of the Act noting that the exchange between an employer and union adherent "has long been recognized" by the Board as not coercive. The Chairman noted that the standard for evaluating the coercion of a statement or question set forth in Rossmore House, 269 NLRB 1176 (1984) requires the Board is to consider the totality of the circumstances. The Chairman pointed out that the employee had worn "pro union regalia for weeks" and the employee immediately and truthfully responded to the question as to how he planned to vote. Although unstated by the Chairman, it seems doubtful that the employer's "preference" could, or should, add to the coerciveness of a particular statement if such preference is not stated in an unlawful manner. Under these circumstances, the Chairman would find the question was not coercive.

Here again we see a significant difference of opinion in how to interpret a very common standard of the law. The majority sees an objective question designed to elicit an employee's sympathies and looks no further. The fact the question was asked makes it unlawful. The dissenting Chairman takes a more narrow approach arguing that under the circumstances the question couldn't possibly be "coercive" because the employee was an open union supporter who reaffirmed his sympathy for the union in his response to the question.

Takeaways

This case in most respects is very routine. The difference of opinion between the majority and the dissent on two of these routine matters, however, is a good indication that it may soon in become harder to prove discrimination and the coerciveness of some statements. We have seen this kind of debate play out recently when a Board majority found an employer's asking an employee how things were going to be the prelude to coercive solicitation of grievances. Employers have been raising the "totality of circumstances" defense for many years, of course, asserting that the agency oftentimes will equate the mere presence of protected or union activity as enough to infer unlawful motivation when any adverse action is taken. Also, employers have been raising the fact that many times a statement (or in this case a question) is objectively not coercive based on the circumstances. Still, going forward it would not hurt to emphasize these points in defense of an alleged violation of the Act.

The Devil Is In the Details: New Board Members Likely To Change Law In Nuanced Ways

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.