C-Case Review Richard A. Bock, Associate General Counsel Division of Advice National Labor Relations Board - American Bar Association

C-Case Review
       Richard A. Bock,
  Associate General Counsel
      Division of Advice
National Labor Relations Board

Severance/Separation Agreements

• No Participation in Claims -- Unless compelled to do so by law,
  signatory will not pursue, assist or participate in any claim brought by
  any third party against Respondent or any released party. Baylor
  University Medical Center, 369 NLRB No. 43 (March 16, 2020).

Non-Disparagement Rules
• Shop Rules and Penalties for Listed Employee Offenses:

   • Statements, either oral or in writing, which are intended to injure the
     reputation of the Company or its management personnel with customers or
     employees. Union Tank Car Co., 369 NLRB No. 120 (July 17, 2020)

Non-Disparagement Rules
• Employee shall refrain from communicating orally or in writing or by any other
  manner whatsoever to any customer or third party, any disparaging claim,
  remark, allegation, statement, opinion, comment, innuendo or information of any
  kind or nature whatsoever, the effect or intention of which is to cause
  embarrassment, disparagement, damage or injury to the reputation, business, or
  standing in the community or customers, Employer or related entities and their
  customers, members managers, officers owners, employees, independent
  contractors, agents, attorneys or representatives, regardless of whether any such
  communication is or may be true or founded in facts. Motor City Pawn Brokers,
  369 NLRB No. 132 (July 24, 2020).
• Civility Rules – As distinguished from unlawful rules, the Board consistently finds
  these lawful, i.e., rules prohibiting employees from using threatening or offensive
  language. See BMW Mfg. Co., 370 NLRB No 56, slip op. at 3 (Dec. 10, 2020).

Confidentiality Rules
• Employees “may receive and obtain access to confidential Company
  information” and agree “not to disclose any such confidential information.
  Confidential information is defined as:

… all private information not generally known in the industry and not readily
available, written, or otherwise including, but not limited to, information
regarding Argos’ customers, customer lists, prospective customers,
customers’ buying habits, production methods (including designs, formulas,
techniques, processes), any non-published prices, discounts, commissions,
costs, supplier information, earnings, contracts, employee information,
subcontractors, business plans, marketing and/or supply strategies, training
programs, computer software or programs, and other business
arrangements … [(Emphasis added.) Argos Ready Mix, 369 NLRB No. 26 (Feb.
5, 2020).

Social Media Rules
• Employees are expected to be respectful and professional when using social media
  tools. With the rise of websites like Facebook, MySpace, and LinkedIn, the way in which
  employees can communicate internally and externally continues to evolve. We expect
  our employees to exercise judgment in their communications relating to Bemis so as to
  effectively safeguard the reputation and interests of Bemis.
• Employees should:
• Communicate in a respectful and professional manner;
• Avoid disclosing proprietary information; and
• Each employee is responsible for respecting the rights of their co-workers and
  conducting themselves in a manner that does not harass, disrupt, or interfere with
  another person’s work performance or in a manner that does not create an
  intimidating, offensive, or hostile work environment. Bemis Co., 370 NLRB No. 7 (Aug. 7,
  2020).

Threats of Unspecified Reprisal
• Employer tweets, “first one of you tries to unionize I swear I’ll send you
  back to the salt mine.”
• Board assesses cases like this by determining how the reasonable
  employee would view the message.
• Defenses:
       * It was merely the tweeter’s personal view -- REJECTED
       * Employer didn’t mean to communicate with employees this
       way – REJECTED
       * No evidence of intent; tweeter meant it as a joke – REJECTED

FDRLST Media, 370 NLRB No. 49 (Nov. 24, 2020)

Concerted Activity – Where Does it End?
• Bargaining unit techs appear at the facility in civilian clothes to
  protest an apparent shortage of uniforms caused by expansion of the
  work week.
• Employer directs them to change into company-issued uniforms
  before they dispatch.
• Disciplinary warnings for concertedly appearing in civilian attire
  unlawful.
• Assessment of attendance points to those who did not dispatch on
  time lawful.
Ohio Bell Telephone Co., 370 NLRB No. 29 (Oct. 28, 2020).

Contract Coverage Test
• Unilateral changes: background checks now must be completed every
  year on employee’s anniversary date (used to be required only if the
  employee was in a vehicular accident on the job); schedules now
  posted only two weeks in advance (used to be posted four months in
  advance).
• Changes are post-contract expiration.
• Unless the expired agreement contains language explicitly providing
  that the relevant provision(s) survive expiration, the contract
  coverage test is inapplicable to post-contract expiration unilateral
  changes.
KOIN-TV, 369 NLRB No. 61 (April 21, 2020)

Discretionary Discipline
• Board overrules Total Security Management, where it previously announced that discretionary
  discipline was a mandatory subject. 800 River Road, 369 NLRB No. 109 (June 23, 2020).
• No such bargaining obligation imposed prior to Alan Ritchey, and the Supreme Court decision in
  Weingarten implicitly approves the prior state of the law when, in giving employees the right to a
  union rep. at a pre-disciplinary meeting, it was not saying the employer assumed a bargaining
  obligation.
• Total misinterprets Katz; fails to understand dynamic status quo. Put another way, the analysis
  should be whether an individual disciplinary action is similar in kind and degree to what the
  employer did in the past within the structure of established policy or practice; only if the
  disciplinary decision is materially inconsistent with such policy or practice, including use of
  discretion, would it be a unilateral change under Katz.
• Total’s bargaining obligation was novel, complex and burdensome, creating what the Board refers
  to as a hybrid bargaining scheme:
    • 1)applies only to serious discipline(though both serious and non- serious discipline are aspects of the same
      subject of bargaining);
    • 2)duty arises after decision has been made but before discipline is imposed;
    • 3)allows the discipline to be imposed provided the parties continue to bargain after.

Successor Forfeiture of the Right to Set Initial
                   Terms
• Ridgewood Health Care Ctr., 367 NLRB No. 110 (2019) – Unlawful
  failure to hire four individuals; putative successor hires 49 of the
  predecessor employees out of total complement of 101. No majority.
• Everport Terminal Services, Inc., 370 NLRB No. 28 (Sept 30, 2020) –
  Ridgewood inapplicable where putative successor uses a general
  discriminatory hiring plan, thereby making it impossible to determine
  whether, absent that plan, it would have hired all or substantially all
  of the predecessor’s employees.

Interpreting Successor’s Lawfully-Set Initial
     Terms and Conditions of Employment
• A Burns successor may lawfully take actions that are reasonably
  encompassed by unilaterally implemented initial terms and conditions
  of employment. Tramont Mfg. LLC, 369 NLRB No. 136 (July 27,2020).
• Board rejects contract coverage and clear and unmistakable waiver
  tests in determining the breadth of actions that may be taken by the
  Burns successor pursuant to lawfully-set initial terms and conditions
  of employment.

Section 8(b)(4)(ii) Coercion
• Board adopts ALJ’s conclusion that broadcasting a recording of a
  crying baby at high volume for extended period of time at neutral site
  violates Section 8(b)(4)(ii)(B) of the Act.
• However, Board refuses to find that this conduct rose to the level of
  picketing.
Electrical Workers Local 98 (Post Brothers), 370 NLRB No. 51 (Nov. 25,
2020).

Section 8(b)(4)(D) – Inferring Employer
                       Preference
• Factors to consider for Determination of Dispute:
   •   Skills and Work Involved
   •   Certifications and Collective Bargaining Agreements
   •   Company and Industry Practice as well as Past Practice
   •   Agreements Between Employers and Unions
   •   Awards of Arbitrators or Joint Boards in Related Cases
   •   Employer Preference (Assignment Made by Employer) and Efficient Operation of Employer’s
       Business

• Employer refuses to express a preference; instead, Board infers employer
preference and relies on it in issuing its Determination of Dispute.
•Declining to express a preference is not the same as truly not having a preference.
International Assn. of Machinists (SSA Terminals), 369 NLRB No. 126 (July 16, 2020).

Cases in the COVID-19 Era
• Board sanctions holding both ULP and pre-election R case hearings by
  video, rejecting arguments that doing so is a denial of due process.
  William Beaumont Hospital, 370 NLRB No. 9 (Aug. 13, 2020);
  Morrison Healthcare, 369 NLRB No. 76 (May 11, 2020).
• Board has modified the timing of remedial notice posting
  requirements in ULP cases – within 14 days after facility at issue
  reopens and a substantial complement of employees have returned
  to work. Danbury Ambulance Service, 369 NLRB No. 68 (May 6, 2020).