Dancing to a Different Tune: DC Circuit Gives Labor a Win by Striking Down Trump-Era Property Access Standard

(NLRB) Trump-era test for determining when a property owner may exclude a contractor’s off-duty employees from its premises. Local 23, Am. Fed’n of Musicians v. N.L.R.B., No. 20-1010, 2021 WL 3869824 (D.C. Cir. Aug. 31, 2021).

On Aug. 31, the United States Court of Appeals for the District of Columbia Circuit rejected the National Labor Relations Board’s

In its prior decision in the case, the board (which was composed of a Republican majority at the time) held that the Tobin Center lawfully blocked symphony musicians from gathering in front of its building to protest a ballet company’s use of recorded rather than live symphonic music. The musicians involved in the protest were employed by the San Antonio Symphony and not by the Tobin Center itself. They performed at the Tobin Center approximately 22 weeks each year, however, based on a contract between the Tobin Center and the San Antonio Symphony.

In reaching its decision, the Trump board lifted the curtain on a new standard (the Tobin Center standard) under which a property owner had the right to exclude a contractor’s off-duty employees from its premises unless (i) those employees “regularly and exclusively” worked on the property and (ii) the property owner failed to show that the contractor’s employees had other, non-trespassory alternatives available to communicate their message. That standard replaced a prior, Obama-era standard under which a property owner could exclude a contractor’s off-duty employees only if the property owner could show that the employees’ activity “significantly interfere[d] with [the property owner’s] use of the property” or that the “exclusion [was] justified by another legitimate business reason.”

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Not So Fast … the NLRB’s New General Motors Standard Isn’t a Rubber Stamp for Discipline in Cases Involving Offensive Speech

On Aug. 25, 2021, the National Labor Relations Board (NLRB) issued a decision applying its new standard for cases where an employee is disciplined for using offensive speech in the course of engaging in protected labor activity. The board initially announced the new standard in its General Motors decision issued in July 2020. In summary, the General Motors standard permits an employer to issue discipline in such instances if the employer demonstrates that it would have disciplined the employee even in the absence of protected activity. The board based its General Motors decision in part on an employer’s obligation under Title VII and similar state laws to maintain a workplace free from unlawful harassment.

Nonetheless, in its Aug. 25 decision, the board held that the employer violated federal labor law by terminating an employee for writing “wh*re board” at the top of voluntary overtime sign-up sheets to protest new overtime procedures that the employer had implemented. The board based its decision on the fact that the employer had not disciplined employees for using similarly profane language in cases that did not involve protected labor activity. Thus, the board held that the employer could not claim that the employee’s discharge was motivated by its desire to comply with anti-discrimination laws, when it had tolerated similarly unacceptable behavior in the past.

Bottom Line: In applying its General Motors standard, the NLRB will not simply determine whether the offensive speech in question may violate applicable anti-discrimination laws. Rather, it will also scrutinize whether the employer tolerated such language in the past. If so, disciplining an employee for using such offensive speech in the course of engaging in protected labor activity may be found unlawful even if the speech is arguably discriminatory.

Caution Signs Ahead: New NLRB General Counsel Memo Offers a Surprising (and Alarming) Road Map of Plans and Priorities

New National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo appears ready and willing to help deliver on President Joe Biden’s promise to be “the most pro-union president [we’ve] ever seen.”

Abruzzo issued a recent memorandum listing various types of cases on which the NLRB’s regional directors will be required to seek guidance during her term so that she can execute a “centralized” strategy in changing the labor law landscape. According to the memorandum, such centralized consideration is necessary in light of the “wide array of doctrinal shifts” that the board has undertaken in the past several years. In other words, the new general counsel is looking for immediate opportunities to overturn Trump-era NLRB precedent and steer the law in a decidedly pro-labor direction. Continue Reading

A Brave, New World? Recent NLRB Rulings Concerning Mail Ballot Elections May Be The Beginning Of A New Era In Board Elections

Since the onset of the COVID-19 pandemic in March 2020, unions and employers alike have had to adjust to a “new normal” of mail ballot NLRB elections. Under normal circumstances, the NLRB’s preferred and standard method for conducting elections is in person, usually at the employer’s facility and – depending on the size of the voting pool – at various times throughout the workday. But in the context of the pandemic, a majority of NLRB elections have instead been conducted by mail ballot. As the Delta variant has pushed infection rates back to alarming levels in many states across the U.S., mail ballot elections may continue to be the rule rather than the exception, at least in some hard-hit areas.

With mail ballot elections, however, come many unique questions and concerns about maintaining the integrity of the voting process and effectively preventing the coercion and manipulation of employees. Two recent NLRB cases are particularly illustrative in this regard.

In Professional Transportation, Inc., 370 NLRB No. 132 (2021), the NLRB established a bright-line rule concerning voting solicitation in the mail ballot context. Moving forward, employers and unions will be deemed to have committed objectionable conduct in an NLRB mail ballot election by offering to collect employee mail-in ballots for mailing or by otherwise offering to assist in mail ballot submission. The NLRB held that such solicitation casts doubt on the integrity of the election process and the secrecy of employee ballots. Moreover, in the NLRB’s view, solicitation of mail ballots also suggests that the party engaging in such conduct is officially involved in the election process, which the Board has held is “incompatible with [its] responsibility for assuring properly conducted elections.” The Board therefore concluded that solicitation of mail ballots may be grounds for overturning election results if the solicitation affects enough votes to determine the outcome. Notably, Chairman McFerran observed in a footnote to the opinion that “it is time for the Board to reevaluate its historic preference for manual elections and to consider expanding and normalizing other ways to conduct elections on a permanent basis, including mail, telephone, and electronic voting.”

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Will the Supreme Court’s Decision Overturning California Union Access Regulation Be a Bonanza for Nonagricultural Employers?

In a significant victory for California agricultural employers, the Supreme Court recently held that California’s regulation requiring agricultural companies to permit union organizers on their property was an unconstitutional taking of private property without just compensation. Cedar Point Nursery v. Hassid, Case No. 20-107. The regulation permitted union organizers to remain on company property for up to three hours per day, 120 days per year.

The district and appellate courts had concluded that the regulation did not amount to a taking of property because it did not allow the general public to access the property on a permanent and/or continuous basis. The Supreme Court, however, held that the regulation amounted to the taking of an easement over the employers’ property on behalf of labor union organizers. Though acknowledging that the easement did not allow permanent occupation, the Court found that the intermittent and temporary nature of the easement was only relevant to the amount of compensation that would be owed as a result of the taking. Continue Reading