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

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