The National Labor Relations Board issued a flurry of employee-friendly decisions last week, continuing its move away from the more employer-friendly rulings by the Trump Board and, in many cases, returning to or reaffirming, precedent developed during the Obama administration. The decisions came just before the end of Republican Member John Ring’s term Dec. 16. Going into the New Year, the Board now is composed of a 3-1 Democratic majority. Below is a summary of the Board’s decisions.
Failure to Give Employees Certain Disclosures Will Result in Per Se Unlawful Questioning
In a case called Sunbelt Rentals Inc., the NLRB reaffirmed a longstanding requirement that employers must make certain disclosures to employees before questioning them in connection with unfair labor practice defenses. The so-called “Johnnie’s Poultry” disclosure, which derives its name from a 1964 case, requires employers preparing a defense to Board proceedings to inform employees of the purpose of the questioning, assure them that no reprisal will take place and obtain the employee’s participation on a voluntary basis. In addition, the questioning must occur in a context free from hostility toward union organization, must not be coercive in nature and must not pry into other union matters beyond what is necessary for preparing the defense. Failure to adhere to the Johnnie’s Poultry safeguards will result in a finding that the questioning was per se unlawful.
The two Republican Board members dissented, advocating instead for a rebuttable presumption standard under which an employer’s questioning of an employee is presumptively coercive if the employer fails to provide one or more of the Johnnie’s Poultry safeguards. Employers would then have the opportunity to rebut the presumption by showing that the questioning was not coercive under a totality of the circumstances approach, which examines the background, the nature of the information sought, the identity of the questioner and the place and method of the interrogation. The majority rejected the rebuttable presumption standard, stating that it did not provide enough protections to employees.
Sunbelt Rentals Inc. involved allegations that the company’s attorney unlawfully questioned employees in preparation for a Board proceeding. The attorney met with two employees who she planned to call as witnesses. In her meeting with one of the employees, she explained the reason for the meeting, assured the employee that speaking to her was voluntary and told the employee that he was entitled to his own counsel if he wished. She did not, however, inform the employee that his answers to her questions would not affect his job. When meeting with the second employee, the lawyer did not inform him that his participation was voluntary. As a result, the Board held that her questioning of these employees was unlawful.
This decision comes after last year’s invitation to file briefs on the question of whether to adhere to Johnnie’s Poultry. Employers should remember to provide all of these disclosures to employees before questioning them in connection with Board proceedings, and ensure that their questions are narrowly tailored to the issues raised by the Board proceeding.
Off-Duty Contract Workers Get Green Light to Protest
The NLRB reversed a Trump-era standard for deciding when property owners may eject a contractor’s employees from their property. The decision, Bexar County Performing Arts Center Foundation (Bexar County II), restores a 2011 standard that makes it more difficult for property owners to remove workers who are picketing, leafletting or otherwise protesting working conditions (i.e. engaging in “Section 7 activity”) on their property.
Under the restored standard, property owners must show that protesting workers are significantly interfering with the use of their property or show some other legitimate business justification for removing the workers. The decision overrules the Board’s 2019 decision in Bexar County I, which favored the property owner’s rights. Under that standard, employees of a contractor could only protest at their worksite owned by a third party if: 1) the employees worked “regularly and exclusively” on the property; and 2) they did not have a “more reasonable alternative non-trespassory” way to communicate their message. Noting the increasing percentage of the workforce employed by onsite contractors, the Bexar II Board cited a need to strengthen the rights of those employees to engage in Section 7 activity at their worksite, regardless of whether their employer owned the site.
Bexar County I, which was on remand to the Board from the D.C. Circuit, involved a dispute between the San Antonio Symphony and the Bexar County Performing Arts Center Foundation (d/b/a the Tobin Performing Arts Center), from which the symphony leased space. The symphony’s employees were prohibited from peacefully distributing leaflets on the sidewalk in front of the main entrance to the Tobin Center in protest of Ballet San Antonio’s decision to use recorded, rather than live, music for its production. The Tobin Center forced them to relocate across the street to a public sidewalk where there were fewer patrons.
The case will have implications in workplaces with contracted employees, including those using staffing agencies to supply workforce labor.
Micro-Units Return, Paving the Way for More Union Organizing
The NLRB revived an Obama-era standard that will make it easier for unions to organize employees and win elections. In a 3-2decisionin American Steel Construction Inc., the Board resurrected the standard developed in a 2011 case called Specialty Healthcare for analyzing appropriate bargaining units. This framework applies when a union seeks to represent some – but not all – job classifications in a particular workplace and makes it easier for unions to organize so-called “micro-units” (or smaller groups) of employees.
Our coverage of that decision can be viewed here.
Traditional Remedy Broadened to Include ‘Direct or Foreseeable’ Damages
The NLRB expressly expanded the scope of its traditional “make whole” remedy to require employers to compensate wrongfully terminated employees for all “direct or foreseeable pecuniary harm.”
Historically, the Board’s remedy for unfair labor practices has been limited to lost wages and benefits; reinstatement to the employee’s former position or a substantially similar position; and, more recently, search-for-work and interim employment expenses incurred because of an unlawful discharge. Now, the Board also will order employers to pay for additional pecuniary losses that are the “direct or foreseeable” result of an unfair labor practice. This may include out-of-pocket medical expenses, credit card debt and other costs or penalties that an employee may not have experienced absent the employer’s unlawful conduct. The burden of proving these additional damages is on the NLRB and will be addressed in Board compliance proceedings. The decision will apply retroactively to all pending cases.
Our coverage of that decision can be viewed here.
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