The current General Counsel of the National Labor Relations Board, Jennifer Abruzzo, is aggressively pursuing cases that could lead to positive changes in existing labor law.
Below is a list of issues that are particularly important to UFCW members that the current Board has not yet addressed. Locals should look for potential cases involving these issues that could be used to improve the law, including overturning unfavorable cases and winning decisions that establish law that is even better than it was before these recent harmful cases.
In order to ensure the strongest possible cases with the best chances of obtaining more favorable law go before the Board, locals and their counsel should coordinate with the International’s Legal Department when these issues arise.
The brief case descriptions here paint each case in the most negative light possible in an effort to highlight the principles we seek to change. Nevertheless, as long as these cases are the applicable law, they can be interpreted aggressively to be less beneficial to companies or even advantageous to unions.
Access
The Board held that a company may exclude non-employee organizers from its property, even when the company grants access to charitable and civic organizations. The Board’s reasoning was that it is only unlawful discrimination when the company denies access to non-employee organizers while allowing access to other non-employees for activities similar in nature to the organizers’ activities. So, following the Board’s view in this case, a company can, for instance, deny access to non-employees who are protesting or criticizing the company, while allowing non-employees who are collecting donations for a charity. This case is Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).
In another decision, the Board held that a company may restrict non-employee organizers from accessing even parts of the company’s property that are open to the public. In this case, a hospital was able to restrict a non-employee organizer from accessing the hospital cafeteria, even though members of the public were allowed to use the cafeteria. This case is UPMC, 368 NLRB No. 2 (2019).
Solicitation
The Board held that a company did not violate labor law when it disciplined a worker for “solicitation” when that worker encouraged their coworker to vote for the union in an upcoming election while the coworker was on working time. In this decision, the Board announced that “solicitation” is broader than handing someone a union card or asking them to sign a card. The Board explained that solicitation includes asking a worker to sign a union card even when no union card is present, and that it includes encouraging workers to vote for or against union representation. The Board also held that when a worker solicits their coworker on work time, the company may discipline workers under the no-solicitation policy even if there is no actual work interruption. This case is Wynn Las Vegas, 369 NLRB No. 91 (2020).
Independent Contractor Standard
The Board modified its test for determining whether a worker is an independent contractor or an employee. The Board overruled a previous decision that looked at a number of factors, including entrepreneurial opportunity, in determining whether a worker is an independent contractor. In the new decision, the Board announced that all of the other factors should be assessed through the lens of economic opportunity, essentially giving the economic opportunity factor more weight than the other factors. In particular, under this newer decision the Board puts more emphasis on a worker’s opportunity for entrepreneurial activity, flexibility, and control, rather than the worker’s actual working conditions and whether any entrepreneurial opportunity is genuinely accessible to the worker or merely hypothetical. This case is SuperShuttle DFW,367 NLRB No. 75 (2019).
Anticipatory Withdrawal of Recognition
The Board created a new framework for a company’s anticipatory withdrawal of recognition, making it harder for the union to show that it retains majority support. When the company informs the union of its anticipatory withdrawal, the union may file an unfair labor practice charge claiming that it did not actually lose majority status. However, under the new framework, the Board does not consider whether the union regained majority status following the employer’s anticipatory withdrawal. This case is Johnson Controls, 368 NLRB No. 20 (2019).
Mail-in Elections
The Regional Directors’ discretion to order mail-ballot elections is limited: mail-ballot elections are appropriate only when (1) employees are geographically scattered, (2) have significantly varied work schedules, (3) a strike, lockout, or picketing is in progress, or (4) other extraordinary circumstances exist. This case is San Diego Gas & Electric, 325 NLRB 1143 (1998).
Protected Activity/Termination Burden
The Board held that in order to prove that a worker was terminated or disciplined for their protected activity, the General Counsel must show a that there is a direct relationship between the worker’s protected activity and the employer’s adverse action. Previously, the General Counsel only needed to establish: (1) the worker engaged in protected activity, (2) the company knew about the worker’s protected activity, and (3) the company had shown animus towards unions or toward the protected activity. Now, it is more difficult to establish that a company terminated or disciplined a worker for their protected activity. This case is Tschiggfrie Properties, 368 NLRB No. 120 (2019).
Unilateral Changes/Discretion
The Board made it more difficult to establish that a company’s unilateral action is a “change” that it must bargain over with the union prior to implementing. In a recent case, the Board found that the company could make a change—modifying workers’ health care costs and benefits—unilaterally when it had unilaterally changed the same working condition in a nearly identical way at the same time each year. This case is Raytheon,365 NLRB No. 161 (2017).
Contract Coverage
The Board adopted the “contract coverage” standard, under which it will find that the company’s unilateral action is lawful if contract language arguably permits the company to act unilaterally, and overruled a previous decision which required companies to bargain over all subjects unless the union “clearly and unmistakably” waived the right to bargain over the subject.
Under the new standard, the Board will first look to whether the contract covers an issue. If it does, the Board will look at whether the act is covered by the part of the contract that allows the company to act unilaterally. If the contract is silent on the issue, the Board will look to whether the union clearly and unmistakably waived its right to bargain over the issue. This case is MV Transportation, 368 NLRB No. 66 (2019).
Inherently Concerted
The current General Counsel is looking for cases to use to expand the “inherently concerted” doctrine. Under current Board law, when workers discuss certain topics, including wages and job security, the discussion is protected activity because discussion of these topics is “inherently concerted.” The General Counsel is interested in expanding this doctrine to discussions over topics such as: worker health and safety, insurance coverage, racism, gender or age-based discrimination, and sexual harassment. Hoodview Vending, 359 NLRB 355 (2012) and Hoodview Vending, 362 NLRB 690 (2015) establish the inherently concerted doctrine.
Backpay in Exchange for Waiver of Reinstatement
The current General Counsel is looking for cases to use to apply a decision awarding more backpay than the company owes in exchange for the worker’s waiver of reinstatement. The case in which the Board found such an award is lawful is Shamrock Foods, 369 NLRB No. 5 (2020).
Any questions regarding the NLRB’s cases and the UFCW’s issues of concern should be directed to Sarah Anderson at slanderson@ufcw.org.
