07/29/2024: Board Clarifies Jefferson Standard Test for Protected Disparagement

Board once again declines to hold that captive-audience meetings are illegal.

Oncor Electric Delivery Company, L.L.C., 373 NLRB No. 80, 16-CA-103387 (Published Board Decision)

This NLRB decision involves a case remanded from the D.C. Circuit Court of Appeals concerning whether Oncor Electric Delivery Company violated the NLRA by discharging employee Bobby Reed for his testimony about smart meters before a Texas state legislative committee.

Key points of the legal analysis:

1. The Board applied the two-prong test from NLRB v. Electrical Workers Local 1228 (Jefferson Standard), 346 U.S. 464 (1953), as directed by the court on remand. This test examines whether: a) The communication indicates it is related to an ongoing dispute between employees and employers b) The communication is not so disloyal, reckless or maliciously untrue as to lose the Act's protection

2. The Board clarified that for the first prong, the General Counsel bears the burden of proof, while for the second prong, the employer bears the burden.

3. The majority found Reed's testimony satisfied the first prong because:

   • He identified himself as a union representative

   • He discussed how smart meters impacted working conditions

   • He mentioned contacting another union local about the issue

   • The legislative audience could reasonably infer a connection to a labor dispute

4. The majority interpreted "labor dispute" broadly, citing Section 2(9) of the NLRA, and found Reed's testimony about smart meters' impact on work orders and customer interactions sufficiently indicated a labor dispute.

5. The dissent argued Reed's testimony failed to indicate any connection to an ongoing labor dispute as required by Jefferson Standard, and that the majority was improperly broadening the test.

Key cases cited:

• NLRB v. Electrical Workers Local 1228 (Jefferson Standard), 346 U.S. 464 (1953): Established that employees' public criticism of employer must indicate connection to a labor dispute to retain NLRA protection.

• Eastex, Inc. v. NLRB, 437 U.S. 556 (1978): Found distribution of union newsletter urging political action was protected concerted activity.

• American Golf Corp., 330 NLRB 1238 (2000): Articulated the two-prong test applied in this case.

• Endicott Interconnect Technologies, 345 NLRB 448 (2005): Found employee's newspaper comments about layoffs were protected despite not explicitly mentioning union.

• Xcel Protective Services, 371 NLRB No. 134 (2022): Held employees need only provide enough information about a labor dispute for third parties to "filter the information critically."

Starbucks Corporation, 373 NLRB No. 75, 03-CA-310676 (Published Board Decision)

This NLRB decision concerns unfair labor practice charges filed by Workers United against Starbucks Corporation related to a union organizing campaign at a store in Liverpool (Clay), New York. The Board adopted the findings and conclusions of Administrative Law Judge (ALJ) Michael P. Silverstein with some modifications.

Key findings and legal analysis:

1. Solicitation of grievances: The Board affirmed the ALJ's finding that Starbucks violated Section 8(a)(1) by soliciting grievances from employee Makaela Maciariello. The Board relied on Tesla, Inc., 370 NLRB No. 101 (2021), which held that solicitation of grievances during a union campaign is unlawful when it carries an implicit or explicit promise to remedy grievances.

2. Threats of benefit loss: The Board upheld the ALJ's finding that Starbucks violated Section 8(a)(1) when district manager Theresa Sellitto told employee Taylor Strouse that employees would lose specific benefits if they unionized. The Board applied an objective standard to determine whether Sellitto's statements amounted to unlawful threats, citing Sunbelt Rentals, Inc., 370 NLRB No. 102 (2021).

3. Impression of surveillance: The Board agreed with the ALJ that Starbucks violated Section 8(a)(1) by creating an impression of surveillance when Sellitto began regularly working from the store lobby after the union petition was filed. The Board relied on Aladdin Gaming, LLC, 345 NLRB 585 (2005), which held that management observation of union activity is unlawful if "out of the ordinary" and coercive.

4. Captive audience meetings: The Board adopted the ALJ's dismissal of allegations that Starbucks held unlawful captive audience meetings, citing longstanding precedent in Babcock & Wilcox Co., 77 NLRB 577 (1948), which allows employers to compel attendance at anti-union meetings.

The Board modified the ALJ's recommended order slightly to conform to standard remedial language. It declined to order additional remedies requested by the General Counsel, such as a notice reading and supervisor training, finding them unwarranted given the limited nature of the violations.

Key Cases Cited

• Tesla, Inc., 370 NLRB No. 101 (2021): Soliciting grievances during a union campaign is unlawful when it carries a promise to remedy them.

• Sunbelt Rentals, Inc., 370 NLRB No. 102 (2021): An objective standard is used to determine if statements are unlawful threats.

• Aladdin Gaming, LLC, 345 NLRB 585 (2005): Management observation of union activity is unlawful if "out of the ordinary" and coercive.

• Babcock & Wilcox Co., 77 NLRB 577 (1948): Employers may compel attendance at anti-union meetings.

The General Counsel has been attempting to get the Board to overturn Babcock and Wilcox and rule that captive-audience meetings are illegal. As in prior cases, the Board indicates in a footnote its potential willingness to do so, but nevertheless declines to do so here.

International Longshoremen’s Union 1413 (Ports America Terminals, Inc.), 373 NLRB No. 79, 01-CB-328360 (Published Board Decision)

This decision by the National Labor Relations Board (NLRB) concerns a default judgment against the International Longshoremen's Association, Local 1413 (Respondent) for alleged violations of the National Labor Relations Act (NLRA).

The case centers around the Respondent's failure to file an answer to a complaint filed by Wayne Cardoza alleging unfair labor practices. The complaint alleged the Respondent violated Section 8(b)(1)(A) and (2) of the NLRA by refusing to refer Cardoza for employment due to personal dislike and his failure to participate in union activities, rather than for any legitimate union membership requirement.

The Respondent argued that it had contacted the NLRB Region and left voicemail messages, but did not receive a response. They further argued that they were undergoing staffing changes and that the Respondent's president was undergoing cancer treatment. Finally, they claimed a good faith belief that their messages were sufficient and would lead to an informal resolution.

The Board found these arguments insufficient to establish good cause for the failure to file an answer. The Board noted that the Respondent received multiple reminders of the answer requirement and that their mistaken belief about the sufficiency of voicemail messages did not excuse their non-compliance with clear directives.

Key Cases Cited

• Patrician Assisted Living Facility, 339 NLRB 1153 (2003): Establishes that pro se status does not automatically justify procedural noncompliance.

• Sage Professional Painting Co., 338 NLRB 1068 (2003): Reinforces that ignorance of procedural requirements does not excuse failure to file an answer.

• Nu-Temp Associates Heating & Cooling, 338 NLRB 790 (2003): Clarifies that mistaken beliefs contrary to clear written instructions do not constitute good cause.

• Kenco Electric & Signs, 325 NLRB 1118 (1998): Holds that late assertions of defenses cannot overcome a failure to file a timely answer.

• Perry Brothers Trucking, Inc., 364 NLRB 58 (2016): Asserts that meritorious defenses are irrelevant when a respondent fails to show good cause for a late response.

Saint Joseph Health System, Inc., 373 NLRB No. 78, 09-CA-297427 (Published Board Decision)

This case involves a dispute between Saint Joseph Health System, Inc. d/b/a CHI Saint Joseph Health —Saint Joseph London (Respondent) and United Food and Commercial Workers, Local 227 (Charging Party) over the Respondent's refusal to recognize and bargain with the Union. The legal analysis focuses on whether the Respondent is a "Burns successor" to Sodexo, a prior employer of the food service employees at the hospital, and whether the historical bargaining unit of food service employees remains appropriate under the NLRB's Health Care Rule.

The ALJ found that Respondent is a Burns successor to Sodexo, obligated to recognize and bargain with the Union. She reached this conclusion by applying the three-part Burns test:

1. Substantial Continuity of Operations: The ALJ found that Respondent maintained substantial continuity of operations with Sodexo, despite making some changes to the food service operations. The core functions of food preparation, service, and cleaning remained substantially the same.

2. Majority of Successor’s Employees were Former Predecessor Employees: The ALJ found that Respondent hired a majority of its food service employees from Sodexo's bargaining unit.

3. Majority of the New Employer’s Workforce in a Unit Remains Appropriate for Collective Bargaining: The ALJ found that the unit of food service employees is appropriate under traditional representation principles. She determined that the Health Care Rule did not apply because no petition was filed, and that the existing non-conforming unit exception applied, allowing the unit to remain in place.

The ALJ also found that Respondent unlawfully refused to recognize and bargain with the Union after the Charging Party made a timely request on June 9, 2022. However, the ALJ found no evidence that Respondent unlawfully made any material changes to terms and conditions of employment after the bargaining obligation attached on June 9. She therefore dismissed the allegations concerning unilateral changes to pay, work schedules, medical benefits, and other terms and conditions of employment.

The NLRB affirmed the ALJ's rulings, findings, and conclusions. They modified the ALJ's recommended order to reflect the timing of the Respondent's refusal to bargain and incorporated standard remedial language. Member Prouty, while concurring in the majority's decision, advocated for the Board to adopt a standard remedy of reading the notice aloud to employees in a group meeting, citing the "serious and widespread" nature of the Respondent's conduct.

Significant Cases Applied:

• NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972): This case established the three-part test for determining whether a successor employer is obligated to recognize and bargain with a union representing the predecessor’s employees.

• Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): This case clarified the "substantial continuity of operations" requirement of the Burns test and the timing of the successorship analysis.

• Pathology Institute, 320 NLRB 1050 (1996): This case held that the NLRB's Health Care Rule does not apply in unfair labor practice cases where no petition has been filed.

The NLRB’s order requires the Respondent to cease and desist from refusing to recognize and bargain with the Union and to take affirmative action, including bargaining with the Union on request.

B & L, Inc., d/b/a Boyds Drug Mart, JD-46-24, 18-CA-321513 (ALJ Decision)

This ALJ decision addresses allegations that B & L, Inc. d/b/a Boyds Drug Mart violated Section 8(a)(1) of the National Labor Relations Act by making certain statements, issuing a written warning to, and terminating employee Tammy Snyder for engaging in protected concerted activity.

Key points of the legal analysis:

1. The ALJ found that Snyder engaged in protected concerted activity by discussing wages with coworkers Lisa Smallbrock and Alisa Rowley. These discussions were aimed at securing a wage increase for Rowley and were therefore for "mutual aid or protection" under Section 7 of the Act.

2. The ALJ applied the Wright Line framework to analyze the alleged discriminatory discipline and discharge: a) The General Counsel met its initial burden by showing protected activity, employer knowledge, and animus (evidenced by the timing of discipline and discharge). b) The employer failed to meet its burden of showing it would have taken the same actions absent the protected activity. The ALJ found the employer's proffered reasons were pretextual.

3. The ALJ found several independent Section 8(a)(1) violations based on statements made by managers prohibiting wage discussions among employees.

4. The ALJ rejected the employer's argument that Snyder's advice to Rowley to "step back" and not work as hard was the real reason for termination, finding the record did not clearly establish the employer relied on this unprotected conduct.

5. The ALJ ordered reinstatement, backpay, and other standard remedies for unlawful discharge.

Key Cases Cited

• Myers Industries, 268 NLRB 493 (1984) and 281 NLRB 882 (1986): Defined "concerted activities" protected by Section 7 as those engaged in with or on authority of other employees, not solely by and for the employee herself.

• Wright Line, 251 NLRB 1083 (1980): Established the burden-shifting framework for analyzing alleged discriminatory actions where motive is disputed.

• Alternative Energy Applications, Inc., 361 NLRB 1203 (2014): Held that employee wage discussions are "inherently concerted" regardless of whether there is an express object of group action.

• American Medical Response of the Mid-Atlantic, 369 NLRB No. 125 (2020): Assisting other employees falls within the Act's "mutual aid or protection" clause even if the assisting employee is not personally affected.

• Triani Industries, Inc., 245 NLRB 1258 (1979): An employer violates Section 8(a)(1) by prohibiting employees from discussing their wages.

Aqua Dental, JD(SF)-23-24, 16-CA-305753 (ALJ Decision)

This ALJ decision involves allegations that Floss N Gloss PA d/b/a Aqua Dental violated Section 8(a)(1) of the National Labor Relations Act by disciplining and terminating employee Sandra Estrada for engaging in protected concerted activities.

Key points of the legal analysis:

1. Protected Concerted Activity: The ALJ found that Estrada engaged in protected concerted activity on two occasions: a) Sending an anonymous email on October 10 discussing workplace concerns after talking with coworkers. b) Discussing the bonus system with coworkers on October 20.

The ALJ emphasized that discussions about wages and working conditions are core rights protected by the NLRA.

2. Knowledge and Animus: The ALJ found that management knew of Estrada's protected activities and exhibited animus, as evidenced by:

• Suspicious timing of discipline shortly after the protected activities

• Shifting and pretextual reasons given for the discipline/termination

• Failure to conduct a meaningful investigation

• Disparate treatment compared to other employees

3. Wright Line Analysis: The ALJ applied the Wright Line framework for mixed-motive cases: a) The General Counsel met the initial burden of showing protected activity was a motivating factor in the adverse actions. b) The burden shifted to the employer to show it would have taken the same actions absent the protected activity. c) The ALJ found the employer's reasons were pretextual and it failed to meet its burden.

4. Oral Rule/Threat Allegation: The ALJ dismissed allegations that the employer orally promulgated a rule prohibiting wage discussions or threatened discipline for such discussions on October 20. The ALJ found the video evidence did not support these claims.

Key Cases Cited

• Wright Line, 251 NLRB 1083 (1980) - Established the framework for analyzing mixed-motive discrimination cases.

• Automatic Screw Products Co., 306 NLRB 1072 (1992) - Held that discussions about wages are "inherently concerted" and protected activity.

• Triana Industries, Inc., 245 NLRB 1258 (1979) - Established that the right of employees to discuss wages is a core substantive right protected by the NLRA.

• Meyers Industries, 268 NLRB 493 (1984) and 281 NLRB 882 (1986) - Defined "concerted activities" as those engaged in with or on the authority of other employees.

• Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151 (2014) - Held that concerted activity is analyzed under an objective standard focused on how employee actions may be linked to those of coworkers.