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“Newly Minted” NLRB Majority Begins to Roll Back Decisions of the Obama Board

In two recent developments, the “new” National Labor Relations Board (“NLRB” or the “Board”), which includes two Members nominated by President Trump, has commenced the anticipated roll back of decisions and procedures rendered by the previous Administration’s NLRB.

1. The NLRB General Counsel can no longer demand settlements with a full remedy for all violations.

In UPMC, 365 NLRB No. 153 (December 11, 2017), the Board reversed a 2016 decision that prohibited settlements of NLRB complaints over the objection of the NLRB General Counsel (Prosecutor) and the party filing the charge, unless the settlement provided complete remedies for all violations alleged in the Complaint. The 2016 decision, United States Postal Service, 364 NLRB No. 116 (2016), had overturned decades-long NLRB precedent established in Independent Stove, 287 NLRB 740 (1987).

In the UPMC majority’s (Chairman Philip Miscimarra, Member William Emanuel, Member Marvin Kaplan) view, requiring a settlement of all violations with a full remedy for the employees (and union) “imposed an unacceptable constraint on the Board itself which retained the right under prior law to review the reasonableness of any … settlement terms” offered by Respondents (employers and unions). According to the UPMC majority, the 2016 USPS decision unduly restricted the settlement of NLRB cases and ignored the risks inherent in NLRB litigation. The UPMC decision now allows a Respondent, with approval of the Administrative Law Judge, to settle a case without providing full and complete relief, so long as the resolution is “reasonable.” This approach should facilitate more settlements, and reduce the costs and uncertainty inherent in litigation (for employers and the NLRB).

The dissent strongly disagreed with what it called “an eleventh hour” decision during Republican Chairman Miscimarra’s last week as a Board member. However, Chairman Miscimarra will soon likely be replaced by another Republican.

2. The NLRB seeks comments on quickie elections – is more change likely?

The day after the UPMC decision, the NLRB published a Request for Information (“RFI”) in the Federal Register seeking prompt public comments about the controversial 2014 Election Rule, commonly referred to as the “quickie election” rule.

Specifically, the RFI seeks public input from December 13, 2017 until February 12, 2018 regarding the following three questions:

Should the 2014 Election Rule be retained without change?
Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
Should the 2014 Election Rule be rescinded?

The “quickie election” rule, effective since April 2015, impacted NLRB elections in three main ways:

It significantly shortened the time period between the date a petition for election is filed and the date of the election. As a result, elections frequently took place approximately three weeks after the petition was filed. This period shortened employers’ time to respond to the union’s campaign efforts from approximately 6 weeks to 23 days.
It considerably restricted the scope of any pre-election challenges that might result in litigation, such as individual voter eligibility issues, unless the question relating to eligibility affected twenty percent (20%) of the proposed unit. Eligibility issues, including determining who is a supervisor and thus is precluded from voting, were generally delayed until after the elections if the union won.
It forced employers to disclose a substantial amount of private employee information to the unions, including providing unions with employee contact information. In particular, the employer is required to disclose, for the first time, employee personal email addresses and phone numbers, including all cell phone numbers. Previously, only mailing addresses needed to be disclosed.

While the “quickie election” rule has not substantially increased union election win percentage, opponents of the rule have objected to the limited time it provides employers to communicate with employees regarding the election, the deferral of election eligibility issues until after the election, as well as the procedural challenges.

Takeaways

Moving forward, interested parties should monitor the new Board’s actions. The recent developments indicate the new Board could likely overturn some of the decisions rendered and procedures proffered by President Obama’s NLRB.

This post was written by W. Terrence Kilroy and Henry J. Thomas of Polsinelli PC.

Learn more at our Labor and Employment Practice Group Page.

Share Recent Eighth Circuit Case Illustrates the Need for Newest Members of the NLRB to Be Confirmed Sooner Rather Than Later

In another example of a federal circuit court taking the National Labor Relations Board (NLRB) to task for stretching federal labor law past the point of recognition, the Eight Circuit Court of Appeals recently refused to enforce a NLRB order reinstating several former employees. The former employees were discharged after they posted flyers around town insinuating their employer was selling unsafe, germ-laden sandwiches as part of a campaign to enhance their sick leave. MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (July 3, 2017).

In its decision, the Eight Circuit upbraided the NLRB for abandoning and ignoring the Supreme Court of the United States’ precedent regarding when an employee can be disciplined for “disloyalty” in the midst of a union organizing drive. The Eighth Circuit took particular issue with the NLRB’s interpretation of the seminal Supreme Court case NLRB v. Local Union No. 1229, IBEW (Jefferson Standard) and found that the NLRB’s reasoning effectively overruled Jefferson Standard.

Background

MikLin is a family business that owns and operates 10 Jimmy John’s sandwich shop franchises in the Minneapolis-St.Paul area. In 2007, several MikLin workers began an organizing campaign seeking representation by the Industrial Workers of the World (IWW) union.

In an attempt to garner more support for a rerun election, union supporters began a sick leave campaign in early 2011. They posted a flyer on community bulletin boards in MikLin stores with two identical images of a Jimmy John’s sandwich. Above the first image were the words, “YOUR SANDWICH MADE BY A HEALTHY JIMMY JOHN’S WORKER.” The text above the second image said, “YOUR SANDWICH MADE BY A SICK JIMMY JOHN’S WORKER.” Below the pictures, the white text asked: “CAN’T TELL THE DIFFERENCE?” The response, in red and slightly smaller, said: “THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.” Below, in slightly smaller white text, was the warning, “WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST.” The text at the bottom of the poster asked readers to help the workers win paid sick days by going to their website.

The day before the IWW could request a rerun election, its supporters distributed a press release, letter, and the sandwich poster to more than 100 media contacts. The press release highlighted discussed the employees’ need for sick leave and ended with a threat: If MikLin would not talk with the IWW about their demands for paid sick leave, they would proceed with “dramatic action” by “plastering the city with thousands of Sick Day posters.”

Days later, IWW supporters implemented their threat to plaster the city with posters. However, in the new version of the poster, rather than asking for support of the employees’ request for paid sick leave, the public posters listed the MikLin CEO’s personal telephone number and instructed customers to call him to “LET HIM KNOW YOU WANT HEALTHY WORKERS MAKING YOUR SANDWICH!” Two days later, MikLin fired six employees who coordinated the attack and issued written warnings to three others who assisted in it.

The NLRB Proceedings

The Board’s administrative law judge (ALJ) determined that MikLin violated the National Labor Relations Act by discharging the employees. Citing prior Board decisions, the ALJ ruled that the NLRA “protects employee communications to the public that are part of and related to an ongoing labor dispute” unless they are “so disloyal, reckless, or maliciously untrue as to lose the Act’s protections.” The ALJ found that to lose the act’s protections “an employee’s public criticism . . . must evidence ‘a malicious motive’ or be made with knowledge of the statements’ falsity or with reckless disregard for their truth or falsity.”

The ALJ found that the posters in question were not maliciously untrue. “While ‘it is not literally true that employees could not call in sick,’ the ALJ observed, employees ‘are subject to discipline if they call in sick without finding a replacement,’” and thus—according to the ALJ—the assertion that employees were required to work when sick was protected hyperbole. Though MikLin had a strong track record with the health department, the ALJ found that “it is at least arguable that [MikLin’s] sick leave policy subjects the public to an increased risk of food borne disease.”

A divided panel of the Board affirmed the ALJ’s findings and conclusions. The majority found “that neither the posters nor the press release were shown to be so disloyal, reckless, or maliciously untrue as to lose the Act’s protection.” The public communications “were clearly related to the ongoing labor dispute concerning the employees’ desire for paid sick leave. . . . Indeed, any person viewing the posters and press release would reasonably understand that the motive for the communications was to garner support for the campaign to improve the employees’ terms and conditions of employment by obtaining paid sick leave rather than to disparage [MikLin] or its product.”

MikLin appealed the Board’s order reinstating the employees to the Eighth Circuit Court of Appeals. On appeal, a three-judge panel upheld the NLRB’s ruling, but upon rehearing en banc by the full court, the ruling was overturned.

The Eighth Circuit’s Analysis

In its full court hearing, the Eighth Circuit took the NLRB to task for significantly misreading the Supreme Court’s decision in Jefferson Standard. First, the majority focused on the Board’s interpretation that no act of employee disparagement is unprotected disloyalty unless it is “maliciously motivated to harm the employer.” They found this additional requirement impermissibly overruled Jefferson Standard.

Second the court balked at the Board’s definition of “malicious motive.” The Board excluded from Jefferson Standard’s interpretation of Section 10(c) of the NLRA all employee disparagement that is part of or directly related to an ongoing labor dispute as improper. In other words, the Board refused to treat as “disloyal” any public communication intended to advance employees’ aims in a labor dispute, regardless of the manner in which, and the extent to which, it harms the employer.

The court rejected that idea:

By requiring an employer to show that employees had a subjective intent to harm, and burdening that requirement with an overly restrictive need to show “malicious motive,” the Board has effectively removed from the Jefferson Standard inquiry the central Section 10(c) issue as defined by the Supreme Court — whether the means used reflect indefensible employee disloyalty. This is an error of law.

Rather than employee motive, the Eighth Circuit explained that critical question in the Jefferson Standard disloyalty inquiry is whether the employees’ public communications reasonably targeted the employer’s labor practices or indefensibly disparaged the quality of the employer’s products or services. The Eight Circuit found that when employees convince customers not to patronize an employer because its labor practices are unfair, subsequent settlement of the labor dispute brings the customers back—to the benefit of both employer and employee. By contrast, the court found, sharply disparaging the employer’s products or services as unsafe, unhealthy, or of shoddy quality causes harm that outlasts the labor dispute to the detriment of employees, as well as the employer.

Key Takeaways

While the Eighth Circuit’s decision is heartening, its effect will be limited for the time being as the NLRB is under no obligation to recognize the court’s interpretation of federal labor law. Further, the decision highlights the cost of fighting incorrect NLRB decisions for employers; MikLin had to appeal the ALJ’s decision to the NLRB, then appeal that decision to the Eighth Circuit, and then request a rehearing after the three-judge panel wrongly decided the appeal. Many employers simply do not have the resources to see a fight like this through to the end.

With President Trump’s selections to the NLRB being vetted by Congress this week, we can hope for a light at the end of this long, dark tunnel for employers.

This post was written byMatthew J. Kelley of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Go to the National Law Review for more legal analysis.

Employer No-Recording Policies May Violate NLRA Says the Second Circuit

On June 1, 2017, the U.S. Court of Appeals for the Second Circuit, which covers Connecticut, New York and Vermont, upheld a National Labor Relations Board (“NLRB”) finding that Whole Foods Market Group, Inc.’s no-recording policy was overbroad and violated the National Labor Relations Act (“NLRA”).

In Whole Foods Market Group, Inc. v. NLRB, Whole Foods’ employee handbook contained a provision that prohibited employees from recording conversations, phone calls, and meetings, without first obtaining managerial approval. The court concluded that this no-recording policy violated the NLRA. The NLRA deems it an unfair labor practice “to interfere with, restrain or coerce employees in the exercise of their rights [to, among other things, engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection.] Whole Foods insisted that its policy was not intended to interfere with employees’ rights to engage in concerted activity or to prevent them from discussing their jobs, and that it was merely a general prohibition against recording in the workplace. Whole Foods argued that its policy was “to promote employee communication in the workplace” by assuring employees that their remarks would not be recorded.

The Second Circuit found, however, that the seemingly neutral policy was overbroad and could “chill” an employee’s exercise of rights under the NLRA. In other words, the policy prohibited recording regardless of whether the recording involved an exercise of those rights. As a result, “’employees would reasonably construe the language to prohibit’ recording protected by [the NLRA].” Despite finding that Whole Foods’ policy violated the NLRA, the Second Circuit said that “[i]t should be possible to craft a policy that places some limits on recording audio and video in the work place that does not violate the [NLRA].” Such a policy might be acceptable if it was narrow in scope, and furthered a legitimate safety concern.

Previously, in 1989, the Second Circuit held that recording a conversation at work in violation of a no-recording policy might not be sufficient “cause” for the termination of an employment agreement under Connecticut law. In Heller v. Champion Int’l Corp, (2d Cir. 1989), the Second Circuit rejected the employer’s assertion that such a recording constituted an act of disloyalty on the employee’s part. According to the Second Circuit in Heller, the employee’s surreptitious tape-recording to be sure, represents a kind of ‘disloyalty’ to the company, but not necessarily the kind of disloyalty that under these circumstances would warrant dismissal as a matter of law. . . . Considering the range of factors that might have justified [the employee’s] conduct, especially his belief that he was gathering evidence in support of a possible claim of age discrimination, we cannot say that [the employer] had sufficient cause, as a matter of law, to dismiss him.

The Second Circuit’s latest decision in Whole Foods makes clear that an overbroad no-recording policy in the workplace will be stricken in violation of the NLRA. At the very least, courts may disregard an overbroad policy depending upon the circumstances surrounding the recording. In order for a no-recording policy to withstand scrutiny, care must be taken to limit the scope of the prohibition, and consider whether the employee’s purpose for recording jeopardizes an employer’s legitimate interest.

This post was written by Salvatore G. Gangemi of Murtha Cullina.

NLRB Invalidates Another Employer Arbitration Agreement – But NOT Under D.R. Horton

On April 13, the National Labor Relations Board (NLRB) invalidated yet another employer arbitration program. This time, however, the NLRB did not do so under its infamous D.R. Horton case. In Dish Network, LLC, the NLRB struck down an arbitration agreement an employer used with its workforce because: 1) as drafted, employees would reasonably construe it as limiting or prohibiting them from filing charges with the NLRB; and 2) a confidentiality provision within the agreement that prohibited employees from discussing anything related to arbitration proceedings, even those related to terms and conditions of employment, was overly broad and infringed on employees’ rights to discuss such issues under the National Labor Relations Act.

While the NLRB’s general counsel also alleged the arbitration program should be found unlawful under D.R. Horton, the NLRB declined to strike it down on that basis because there was no explicit provision in the agreement that limited class or collective actions, and there was no evidence the company ever tried to preclude such actions from forming based on the agreement.

This case serves as an important reminder for companies using or considering an arbitration program to resolve workplace disputes with its employees that the NLRB aggressively scrutinizes such agreements. Accordingly, care must be taken when drafting and implementing the agreements so they account for recent NLRB decisions and guidance. Failure to do so may result in the program being partially or wholly invalidated.

ARTICLE BY David J. Pryzbylski of Barnes & Thornburg LLP

NLRB Will Not Hack Into Prior Decision Regarding Employee Email Use During Non-Work Time

Network security and protection of confidential information are among the reasons many companies place limits on how and when employees may use company-provided email. However, the National Labor Relations Board (NLRB or Board) has largely ignored if not outright rejected these legitimate concerns, finding that under certain circumstances, they are outweighed by employees’ right to use email as a means to engage in concerted activity protected by Section 7 of the National Labor Relations Act (NLRA), which includes union organizing. The NLRB’s March 24, 2017 decision in Purple Communications, Inc.reconfirmed the Board’s position, first announced in an earlier 2014 decision, that an employer that provides its employees with access to company email systems must presumptively allow employees to use those systems during non-work time to engage in NLRA-protected activity. Accordingly, under this standard, an employer who maintains a policy prohibiting employees from all use of company email during non-work time presumptively violates the NLRA.

It was precisely this type of non-work time email restriction that landed Purple Communications, Inc. in hot water with the NLRB. At the initial hearing in this case, an administrative law judge (ALJ) found that Purple’s total ban on non-work time use of company email did not violate the NLRA, relying on the NLRB’s decision from 2007 in Register Guard, which held that employees have no statutory right to use employer-provided email systems for Section 7 purposes, and thus allowed employers to prohibit non-work time use of company email systems, so long as the policy or practice did not discriminate against NLRA-protected activity. The parties on both sides in the Purple matter appealed the ALJ’s decision on this and other grounds, and the matter was taken up for consideration by the Board. After review of the record, a Board majority (in a three-to-two member decision) promulgated a new standard under the NLRA for employer regulation of its own email systems during non-work time (Purple I). The Board majority expressly overruled Register Guard, and held that under its new standard, employees are presumptively entitled to use their employers’ email systems during non-work time in order to engage in statutorily-protected communications. The Board announced that this presumption can only be overcome in rare cases where “special circumstances” exist to allow employers to maintain “production or discipline.” Notably, special circumstances cannot be established through the ordinary (yet entirely legitimate) concerns that affect all employers, such as those mentioned above concerning security or confidentiality of information. In its order setting forth this standard, the Board also remanded the matter back to the ALJ to enter an order consistent with the new standard. On remand, the ALJ predictably found Purple’s policy violated the NLRA under the Purple I standard. Purple once again appealed, asking the Board to reconsider the standard it announced in the Purple I decision.

On March 24, 2017, a majority of the three-member Board panel assigned to review the matter confirmed the standard announced in Purple I, without significant comment except to refer back to the original 2014 majority decision. Acting Board Chairman Philip Miscimarra dissented from the majority’s Purple II decision, as he did in Purple I, calling the standard it set forth “incorrect and unworkable,” and pointing out many of its practical flaws. Among them, Acting Chairman Miscimarra explained that the Purple standard fails to properly balance an employer’s right to control its technology resources, which are a significant expense to employers to maintain and secure, with employees’ NLRA rights. The dissent also pointed out that the decision limits employers’ ability to control work-time behavior, because an email sent by one employee during his or her non-work time often will be received and read by another employee during his or her own work time. In addition, the dissent noted the tension created by the majority’s decision between an employer’s legitimate right to monitor use of its technology, including email (allowing it to appropriately intercept improper communications, such as harassing or discriminatory communications for which it could be liable under other laws), with the NLRA’s prohibition of employer surveillance of NLRA protected activity. These and other concerns are likely now once again going through many employers’ minds when considering the Purple standard.

There is a silver lining for employers, at least for now. First, the Purple standard does not apply to employer regulation of email during working time, only non-work time. Second, the Purple standard only applies to employers who already grant employees access to company email systems in the course of their work; employers are not required to provide employees with email access they do not otherwise have. Third, the Purple decision only applies to company email, and not other forms of company technology. However, the latter restriction may only be temporary. Although the composition of the NLRB is expected to become more employer-friendly with the change in presidential administration, it is possible that the NLRB could use the same or similar reasoning from Purple to broaden the non-work time use requirement to other forms of company technology (cell phones and social network platforms, to name a couple).

Because of this, employers would be well-served to review their technology policies. Absent truly unique circumstances, employers generally should avoid policies that state a total ban on non-work time use of company-provided email. Bolstering other company policies, such as those that relate to confidentiality and time keeping, may help alleviate some of the problems meant to be addressed by a broad non-work time email ban. And, to avoid becoming the next name on a new NLRB standard, consider whether any non-work time use restrictions on other forms of technology might be overbroad under the reasoning in Purple.

ARTICLE BY Daniel B. Pasternak of Squire Patton Boggs (US) LLP

“Change” Comes to Washington—What to Expect

On January 3, 2017, the 115th U.S. Congress opened with Republican majorities in both houses:

U.S. Senate: 52 Republicans and 46 Democrats and 2 Independents who Caucus with the Democrats
U.S. House of Representatives: 241 Republicans and 194 Democrats

On January 20, 2017, President-elect Donald Trump will be inaugurated as the 45th President of the United States, with an ambitious agenda set for the first 100 days, including the confirmation of his cabinet appointees and a yet-to-be-named Supreme Court nominee. Among his first acts, President-elect Trump is expected to undo many of the executive orders and “midnight regulations” of the Obama administration.

In the closing days of 2016, President Barack Obama adopted numerous federal regulations that may have served to advance and preserve his legacy. During his election campaign, Trump announced that, on his first day in office, his intention would be to roll back the executive orders adopted during the Obama administration and to seek repeal and replacement of other enactments such as the Affordable Care Act (or Obamacare). Most final regulations, however, may not simply be overturned with the stroke of the president’s pen, but must be undone by Congress, the courts, or reverse notice and comment rulemaking.

Thus, in addition to confirming President Trump’s cabinet nominations as quickly as possible, among the other early challenges for Congress will be to repeal and replace Obamacare and to invalidate en bloc the so-called “midnight regulations” and others adopted by the Obama administration or initiate a Congressional Review Act resolution of disapproval.

The first 100 days of the new Trump administration and the new 115th Congress will be busy and consumed by the following:

Senate Confirmations: Secretary of Labor-Designate Andy Puzder

Since his election, President-elect Trump has named his selections for cabinet seats, including on December 8, 2016, his choice of Andy Puzder to be the next Secretary of Labor. Puzder is the president and chief executive officer of CKE Restaurants, which has over 3,700 franchise restaurants, employing over 75,000 employees in the United States and 40 other countries. He has long been an advocate of job creation and an outspoken critic of government regulation of business, including the dramatic increase in the salary basis for exemption from overtime for “white collar” employees under the proposed overtime regulations. Puzder represents a dramatic shift from outgoing Secretary of Labor Thomas Perez.

Senate Democrats and labor unions have threatened opposition to Puzder’s confirmation. Under current Senate rules, however, confirmation requires only a simple majority since then Senate Majority Leader Harry Reid (D-NV) pushed through a rules change to eliminate 60-vote filibusters of administration and judicial nominations, except for nominations to the Supreme Court of the United States. With a majority of 52 votes, Senate Republicans should be able to confirm Mr. Puzder even if all 48 Democrats vote against his confirmation. The Senate Committee on Health, Education, Labor and Pensions has scheduled Mr. Puzder’s confirmation hearing for January 27, 2017.

Since Election Day, President-elect Trump and his transition teams (landing teams) have been hard at work vetting candidates for not only the cabinet, but subcabinet positions as well. Following Mr. Puzder’s confirmation, we expect the announcement of critical subcabinet positions at the U.S. Department of Labor, including those of deputy secretary of labor; solicitor; assistant secretaries for policy, occupational safety and health, and labor-management standards; and administrator of the Wage and Hour Division, among others.

Turning Around the NLRB and EEOC

At the National Labor Relations Board (NLRB), President-elect Trump will be able to designate lone Republican Board Member Philip Miscimarra as the new chairman to replace current Democratic Chairman Mark Pearce. He will also likely nominate two Republican members to join Miscimarra and current Democratic Members Pearce and Nancy Schiffer, thus giving Republicans a 3–2 majority. However, the task of reconsidering the staggering number of blatantly pro-union decisions by the Obama Board, which by some estimates overturned 4,559 years of well-settled Board law precedent, will be slowed by current Democratic General Counsel Richard Griffin, whose term will not expire until November of 2017. A former union lawyer, Griffin for the remainder of his term will likely insist that the NLRB’s regional offices adhere to and enforce the law established by the Obama Board, and will probably limit the opportunity to present cases to the new Trump Board for reconsideration. Since the NLRB is prohibited from issuing “advisory” opinions, the new Board will need to wait for “live cases” to rise up the pipeline. Thus, reversals of Obama Board decisions are not likely to come quickly.

At the U.S. Equal Employment Opportunity Commission (EEOC), current Democratic Chair Jenny Yang is now expected to serve out her term. President-elect Trump, however, will be able to designate Republican Commissioner Victoria Lipnic as chair and to nominate a Republican to fill the seat vacated by Republican Commissioner Constance Barker upon the expiration of Yang’s term in July of 2017. Barker’s nomination for a new term was pending in the Senate when Congress adjourned, and it must be resubmitted in the current Congress.

Overturning Federal Regulations

On his first day in office, President-elect Trump is expected to overturn numerous executive orders dating back to President Obama’s earliest days in 2009. Included may be executive orders mandating project labor agreements on federal construction projects, prohibiting reimbursement of labor relations costs for federal contractors, and setting mandatory minimum wages and paid family leave for federal contractors. Most importantly, he is likely to overturn Executive Order 13673 “Fair Pay and Safe Workplaces” requiring federal contractors and subcontractors to report “administrative merits determinations” (including alleged violations of 14 federal labor laws and equivalent state laws based on agency complaints prior to litigation and final judgment). These reports would need to be considered by federal contracting officials in the awarding of future federal contracts. Expect the so-called government contractor “blacklisting” rules and its implementing regulations and DOL guidance, already enjoined preliminarily by a court decision, to be among the first executive orders to be undone.

For its part, Congress is considering legislation to block “midnight regulations” issued by the outgoing Obama administration. During its first week in session, the new 115th Congress passed the Midnight Rules Relief Act (H.R. 21) sponsored by Representative Darrell Issa (R-CA) and the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 sponsored by Representative Doug Collins (R-GA).

The Midnight Rules Relief Act amends the Congressional Review Act (CRA) to allow joint resolutions disapproving en bloc regulations submitted to Congress for review within 60 days of the end of a president’s term. The CRA may only be invoked on individual regulations, not a series of regulations en bloc.

The REINS Act requires that all new “major regulations” (those with an economic impact of $100 million or more) be subject to an up-or-down vote by a simple majority in both houses of Congress and be signed by the president before taking effect.

Of course, Congress already can institute a resolution of disapproval under the CRA for individual federal regulations within 60 legislative days of taking effect (or for a “reset” period upon the opening of a new Congress for regulations that were submitted to Congress for review on or after June 13, 2016, prior to its adjournment sine die). The resolution of disapproval is not subject to filibuster and, if passed and signed by the president, the same or “substantially similar” regulation may not be reintroduced and repromulgated in the future. The only federal rule ever to be disapproved under the CRA was the OSHA ergonomics standard issued in November of 2000, which was disapproved by the Republican Congress and signed by President George W. Bush in 2001.

Finally, of course, Congress may attach a “rider” to an appropriations or reconciliation bill (the latter of which is not subject to a Senate filibuster) that denies funding for the agency to enforce the regulation.

What Else?

In addition to the foregoing, Congress is expected to roll back agency regulatory powers by passing the Regulatory Accountability Act of 2017, H.R. 5 (Goodlatte, R-VA), which would repeal the longstanding so-called “Chevron deference” given to agencies’ legal interpretations. The legal standard originates from the Supreme Court’s 1984 decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. The legislation would eliminate Chevron standards frequently used by courts to uphold agency interpretations of federal regulations, as well as change agency rulemaking and strip agency “guidance” from having legal effect. In addition, the bill would require six-month delays of enforcement for new rules and mandatory litigation stays for “major rules” that would have an impact of $1 billion or more on commerce. The bill also would require agencies to calculate the direct, indirect, and cumulative effects of new rules on small business. A vote on the bill is expected in the House in January, over the strong opposition of organized labor and environmental groups that fear that the bill will curtail labor and environmental rule making.

Other Priorities—Will the Government Be Less Dysfunctional?

Newly-elected presidents often pursue aggressive first year agendas that embody their most important policy goals enunciated during their election campaigns. President Trump will be no different, and he is likely to advance policy objectives fulfilling campaign promises on reversing government regulations as well as on immigration, trade, taxes, military spending, national security, infrastructure, and job growth. Taking on that laundry list of policy initiatives will be easier said than done. From the start of his administration, President Obama had difficulty overcoming united Republican opposition to his policy goals. For their part, Democratic leaders in the 115th Congress—led by Senate Democratic Leader Chuck Schumer (D-NY) and House Democratic Leader Nancy Pelosi (D-CA)—already promise to stand firmly against the confirmation of certain cabinet nominees and any Supreme Court nominee who in their opinion may be outside the mainstream of judicial philosophy and legislative policies they oppose. On a few issues, such as infrastructure, the Democratic leaders say they may seek bipartisan compromise. With a narrow 52-vote Senate majority, Senate Republicans will find it difficult to muster the 60 votes necessary to invoke cloture to end a Democratic legislative filibuster. Thus, expect congressional gridlock to continue, although possibly not to the same degree as over the past 12 years. Voters who are now seeking less gridlock and a less dysfunctional government may be disappointed at the pace of change.

Filibusters are meant to be dysfunctional, to be the Senate “saucer” that cools the “overheated cup” of House action by promoting extended Senate debate and deliberation. It is the main distinction between the House and Senate. Ironically, there were a number of Senate Democrats in the last Congress who supported a rules change to eliminate legislative filibusters along with the “nuclear option” advanced by then Senate Majority Leader Harry Reid (D-NV), which would have eliminated filibusters of administrative appointments and judicial nominations. Today, the legislative filibuster may be the Democrats’ salvation. Indeed, there may be some Senate Republicans who would consider eliminating the legislative filibuster. Where one stands depends on where one sits. However, Senate Majority Leader Mitch McConnell (R-KY) is unlikely to permit elimination of the legislative filibuster.

Still, the nuclear option against administrative and judicial nominations continues to stand. This means that President Trump’s cabinet nominations should be confirmed unless Senate Democrats are able to convince three Republicans to join them in voting against the nominations. It also means that judicial nominations should be quickly confirmed on simple majority votes. Currently, there are over 100 unfilled judicial vacancies—including a number of critical federal circuit court seats. The federal appellate courts are important for labor and employment policy since, in our constitutional system of checks and balances, the federal circuit courts are the appellate courts that review government regulations promulgated by the executive branch and legislation passed by Congress. Apparently, the “nuclear option” was so effective in the 114th Congress that President Obama was able to quickly push through Democratic judicial nominations, and today there are only 4 of the 12 judicial circuits with majorities appointed by Republican presidents. Expect that to change and for the circuit courts to become more balanced.

Legislation, however, is still subject to the 60-vote Senate filibuster of bills passed quickly by the larger Republican majority in the House. Thus, “change” may come to Washington, but perhaps not as easily or as quickly as some voters may anticipate.

ARTICLE BY Harold P. Coxson of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Employee’s Disparaging and Misleading Tweets May Be Protected Under NLRA: Holy Guacamole!

Retail employers dismayed by employees publicly airing workplace grievances in disparaging social media posts must think twice before taking disciplinary action. On August 18, 2016, the National Labor Relations Board (“NLRB”) confirmed the finding by Administrative Law Judge Susan A. Flynn that Chipotle’s social media policy forbidding employees from posting “incomplete” or “inaccurate” information, or from making “disparaging, false, or misleading statements” on Twitter, Facebook and other social media sites violates Section 8(a)(1) of the National Relations Labor Act (“the Act”).

Chipotle discovered that an employee responded to a customer’s tweet thanking Chipotle for a free food offer, by tweeting back: “@ChipotleTweets, nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?” Then, attaching a news article describing how hourly workers at Chipotle were required to work on snow days while certain high-level employees were not, the employee tweeted his displeasure, specifically referencing Chipotle’s Communications Director: “Snow day for ‘top performers’ Chris Arnold?” Informed by his manager that Chipotle considered his tweets to be in violation of Chipotle’s social media policy, the employee removed them at Chipotle’s request. Then, several weeks later, Chipotle fired the employee after he circulated a petition about employees not receiving required breaks.

Finding the provision in Chipotle’s policy prohibiting employees from spreading “incomplete” or “inaccurate” information to be unlawful, Judge Flynn opined that: “An employer may not prohibit employee postings that are merely false or misleading. Rather, in order to lose the [NLRA]’s protection, more than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” Judge Flynn also found the policy provision prohibiting “disparaging” statements to be unlawful, explaining that it “could easily encompass statements protected by Section 7 [of the NLRA]” including “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Although Chipotle’s social media policy contained a disclaimer that the policy “does not restrict any activity that is protected by the National Relations Labor Act, whistleblower laws, or any other privacy rights,” Judge Flynn concluded that this “sentence does not serve to cure the unlawfulness of the foregoing provisions.”

The NLRB adopted Judge Flynn’s decision that Chipotle was wrong, not only for firing the employee, but for attempting to limit his commentary on social media by its unlawfully termed social media policy. While agreeing with Judge Flynn’s reasons for finding the social media policy unlawful, the NLRB disagreed with Judge Flynn’s finding that Chipotle violated the NLRA by asking the employee to delete the tweets. In particular, while Judge Flynn opined that the employee engaged in “concerted activity” even though he did not consult with other employees before posting his tweets because “concerted activities include individual activity where individual employees seek to initiate or to induce … group action,” the NLRB disagreed, asserting, with no true explanation, that it did not find the employee’s conduct to be concerted. Agreeing that Chipotle violated the NLRA by terminating the employee after he engaged in protected concerted activity by circulating a petition regarding the Company’s break policy, the NLRB required Chipotle to, among other things, post signs acknowledging that its social media policy was illegal, and to re-instate the employee with back pay.

The message from the NLRB to retail employers is that, barring malicious misstatements, speech concerning terms and conditions of employment is often protected activity, even for employees who want to criticize their employers on Twitter and other social media websites. To avoid Chipotle’s fate, ensure that your social media policies are up to date and provide for the increasing protections afforded to employee social media activity by the NLRB.

ARTICLE BY John M. O’Connor of Epstein Becker & Green, P.C.

NLRB Excludes Theology Teachers from Bargaining Unit at Catholic Universities

While the National Labor Relations Board’s (NLRB) decision this week in the teaching assistants’ case caught most of the headlines, the very same day the Board also issued two important rulings defining appropriate bargaining units at Catholic universities.

In cases arising at Seattle University (a Catholic university operated by the Jesuit order) and Saint Xavier University (a Chicago-area Catholic university founded by the Sisters of Mercy), the Board determined that faculty teaching theology and religion were exempt from the coverage of the National Labor Relations Act (NLRA) and therefore must be excluded from the petitioned-for bargaining units.

At Seattle University, the Service Employees International Union, Local 925, sought to represent a bargaining unit comprised of all non-tenure eligible faculty at the university other than those teaching nursing and law. At Saint Xavier, the Illinois Education Association (IEA-NEA) petitioned to represent all part-time faculty at the university other than those teaching at the School of Nursing.

In reaching its decision, the Board retraced its torturous reasoning in Pacific Lutheran University, 361 NLRB 157 (2014), in which it sought to avoid the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In that case, the Supreme Court instructed that the NLRA must be construed to exclude teachers in church-operated schools because to do otherwise “will necessarily involve inquiry into the good faith of the position asserted by the clergy-administrators and its relationship to the school’s religious mission.” The court concluded that the Board’s assertion of jurisdiction over teachers in church-operated schools would give “rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid.” For the Board to engage in such inquiry would violate the First Amendment.

In Pacific Lutheran, the Board purports to follow the teaching of Catholic Bishop but instead formulates the following seemingly non-compliant test: “[T]he Act permits jurisdiction over a unit of faculty members at an institution of higher learning unless the university or college demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and that it holds out the petitioned-for faculty members as performing a specific role in creating or maintaining the school’s religious educational environment.”

In both the Seattle and Saint Xavier cases, the Board agreed that both universities identify themselves as “providing a religious educational environment,” thus meeting the first part of the two-part test. However, in both cases, the Board concluded that only the faculty in Seattle’s Department of Theology and Religious Studies and School of Theology and Ministry and Saint Xavier’s Department of Theology met the second part of the test. Therefore, those individuals could not be part of the bargaining unit.

In his dissents in each case, NLRB Board Member Phillip A. Miscimarra lays bare the clear conflict between the Pacific Lutheran decision and the Supreme Court’s decision in Catholic Bishop. “My colleagues and I are not permitted to write from a clean slate regarding this issue. It is governed by NLRB v. Catholic Bishop of Chicago, where the Supreme Court rejected the Board’s assertion of jurisdiction over ‘lay teachers’ at church-operated schools, which the Board had attempted to justify on the basis that the schools were ‘religiously associated’ rather than ‘completely religious.’” The Supreme Court held that the Board could not exercise jurisdiction over teachers in church-operated schools based on “abundant evidence” that doing so “would implicate the guarantees of the Religion Clauses.”

And as Miscimarra points out in dissent, the decision reached by the Board in these two current cases actually proves his point. “In other words, my colleagues draw the precise distinction—between faculty members who teach ‘religious’ subjects, on the one hand, and those who teach ‘secular’ subjects, on the other—that the Supreme Court rejected as entailing the type of ‘inquiry’ that, by itself, may impermissibly impinge on rights guaranteed by the Religion Clauses.” That impingement necessarily results, Miscimarra writes because “[l]engthy reflection is not needed to recognize that it will often be impossible to determine whether faculty members at religiously affiliated schools who ostensibly teach ‘secular’ subjects nonetheless perform a ‘specific role in creating or maintaining the school’s religious educational environment.’”

One would expect that both of these cases will be appealed, particularly because, as Miscimarra points out, the D.C. Circuit Court of Appeals reads Catholic Bishop in an entirely different fashion than does the Board. In University of Great Falls v. NLRB, 278 F.2d 1335 (D.C. Cir 2002), that court articulated a three-part test under Catholic Bishop. Under its test, the Board has “no jurisdiction over faculty members at a school that (1) holds itself out to students, faculty and community as providing a religious educational environment; (2) is organized as a nonprofit; and (3) is affiliated with or owned, operated, or controlled, directly or indirectly, by a recognized religious organization, or with an entity, membership of which is determined, at least in part, with reference to religion.”

Copies of the Seattle Board Decision and Saint Xavier Board Decision decisions are available here.

ARTICLE BY Gerald F. Lutkus of Barnes & Thornburg LLP

NLRB to Decide Organizing Rights of Non-Teaching Employees at Religious Colleges, Universities

NLRB national labor relations board The National Labor Relations Board is set to decide if the same test used to determine whether teaching employees of a religious school are subject to the Board’s jurisdiction should be extended to non-teaching employees. Islamic Saudi Academy, Case 05-RC-080474 (May 12, 2016).

In Pacific Lutheran University, 361 NLRB No. 157 (2014), the Board adopted a two-part test for determining whether to exercise jurisdiction over teachers at such schools under the U.S. Supreme Court’s decision in NLRB v. Catholic Bishop, 440 U.S. 490 (1979). The Board held that a college or university claiming that it is exempt from NLRB jurisdiction must first demonstrate it holds itself out as providing a “religious educational environment”. If the school satisfies that requirement, it then must show that it holds out the faculty members who a union is seeking to represent “as performing a specific role in creating or maintaining the college or university’s religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.”

On whether a school satisfies the second part of the test, the Board will determine whether the school holds out its faculty members as performing any religious function in creating or maintaining a religious educational environment. The Board noted that evidence in support of this requirement might include showing “that faculty members are required to serve a religious function, such as integrating the institution’s religious teachings into coursework, serving as religious advisors to students, propagating religious tenets, or engaging in religious indoctrination or religious training.” For more on Pacific Lutheran University, see NLRB Announces New Standard for Exercising Jurisdiction Over Religiously Affiliated Colleges and Universities.

Islamic Saudi Academy is a non-profit private educational institution operating an elementary and secondary school at two locations in Fairfax County, Virginia. In May 2012, the Islamic Saudi Academy Employee Professional Association filed a petition to represent, among others, the Academy’s non-teachers, such as nurses, IT employees, librarians, finance clerks, and internal auditors. After several procedural twists and turns, as well as issuance by the Board of its decision in Pacific Lutheran University, the Board ordered the case be remanded to the Regional Director “for further appropriate action consistent with its decision in Pacific Lutheran University.”

The Regional Director decided that, assuming Pacific Lutheran University applies to non-teaching employees at primary and secondary schools, the Academy had not established that the non-teaching classifications were held out as performing a specific religious function and that the Board should assert jurisdiction over the non-teaching classifications. The Academy then requested review by the NLRB.

It is unclear how the second part of the test –holding employees out as performing a religious function — would be applied to non-teaching employees, since the school must show the non-teacher performs a religious function in creating or maintaining a religious educational environment. Certainly, with respect to many non-teachers, satisfying the burden of proof will be a tall order.

The Latest in the NLRB Handbook Saga? Another Unlawful Recording Policy Fails to Pass Muster

Last month, the National Labor Relations Board (NLRB) yet again shed further light on its analysis – and increased scrutiny – of employers’ handbook policies. The NLRB’s decision in T-Mobile USA, Inc., 363 NLRB No. 171 (Apr. 29, 2016), serves as a follow-up to an earlier decision with respect to rules restricting employees’ use of recording devices. We talked about the T-Mobile decision in our post last week and thought we would continue the discussion by elaborating on another of the board’s decisions on recording rules.

In one of many recent decisions scrutinizing employer handbook policies, the board in Whole Foods evaluated an employer rule prohibiting the use of recording devices on company premises. Whole Foods, 363 NLRB No. 87 (Dec 24, 2015). The NLRB specifically explained that it was not holding that all rules regulating recordings are invalid. Rather, the board found “only that recording may, under certain circumstances, constitute protected concerted activity under Sec. 7 and that rules that would reasonably be read by employees to prohibit protected concerted recording violate the Act.” Id. at *3, n.9. The NLRB further explained that employers are not prohibited from maintaining rules restricting or prohibiting employee use of recording devices, but they must be narrowly drawn so that employees understand that Sec. 7 activity is not restricted. This was the board’s issue with respect to the Whole Foods policy, as it found the rules to be overly broad. The board relied on the fact that the rules applied regardless of the type of activity engaged in and that it covered all recordings.

The T-Mobile decision, which we wrote about last week, provides additional insight on how to interpret Whole Foods. In T-Mobile USA, Inc., 363 NLRB No. 171 (Apr. 29, 2016), the board found the following policy to be unlawful:

To prevent harassment, maintain individual privacy, encourage open communication, and protect confidential information, employees are prohibited from recording people or confidential information using cameras, camera phones/devices, or recording devices (audio or video) in the workplace. Apart from customer calls that are recorded for quality purposes, employees may not tape or otherwise make sound recordings of work-related or workplace discussions. Exceptions may be granted when participating in an authorized [] activity or with permission from an employee’s Manager, HR Business Partner, or the Legal Department. If an exception is granted, employees may not take a picture, audiotape, or videotape others in the workplace without the prior notification of all participants.

Id. at *4. The administrative law judge found that T-Mobile had set forth valid, nondiscriminatory rationales for the rule, including maintaining a harassment-free work environment and protecting trade secrets, and that the rule was narrowly tailored to these interests. However, the NLRB reversed, noting that “[t]he rule does not differentiate between recordings that are protected by Section 7 and those that are not, and includes in its prohibition recordings made during nonwork time and in nonwork areas.” Id. at *5. Notably, though, the policy did state that the restriction is limited to recordings “in the workplace.”

With respect to the policy justifications alleged, the board conducted the following analysis:

Harassment: T-Mobile asserted that its recording prohibition was in place to prevent harassment and noted that, under federal and state laws, employers have an affirmative obligation to prevent harassing conduct. However, the NLRB found that the recording prohibition was not narrowly tailored to this interest. The board noted that it neither cited laws regarding workplace harassment nor specified that the restriction is limited to recordings that could constitute unlawful harassment.

Confidential information: T-Mobile asserted as an additional justification its interest in protected confidential information in the workplace. The NLRB noted that the employer’s other policies defined “confidential information” as inclusive of employee information such as employee contact information and wage and salary information. The board also cited Whole Foods and said that the employer’s interest in protecting confidential information was too insufficient to justify the broad prohibition on recording.

While Whole Foods indicated that such policies are not per se unlawful, the T-Mobile decision makes clear that simply inserting business justifications into the policy will not distinguish the lawful from the unlawful. The board seems to be closely scrutinizing the justifications and requiring detailed explanations thereof. The decisions in T-Mobile and Whole Foods indicate that the NLRB will also require that a rule carve out recordings that would be considered protected activity under the Act, and it appears – at least for now – that rules which fail to do so will be struck down. T-Mobile teaches us that, while recording rules are still lawful in some circumstances, the rules must be especially specific with regard to their application and justifications. Employers should continue to closely monitor NLRB decisions to stay up-to-date on all decisions analyzing employer handbook policies.

Article By Jackie S. Gessner of Barnes & Thornburg LLP

Tag: NLRB

“Newly Minted” NLRB Majority Begins to Roll Back Decisions of the Obama Board

1. The NLRB General Counsel can no longer demand settlements with a full remedy for all violations.