Labor & Employment Law Daily Nine newly released NLRB advice memos span 8 years, address work rules, dues revocation, among other topics
Thursday, April 18, 2019

Nine newly released NLRB advice memos span 8 years, address work rules, dues revocation, among other topics

By Pamela Wolf, J.D.

The memos, dated between 2011 and 2019, address topics such as union discipline and checkoff revocation, and employer social media and media communication rules, among others.

On April 15, the National Labor Relations Board released a bundle of nine Advice Memoranda, issued between 2011 to 2019, covering a broad range of topics such as union discipline affecting employment prospects, checkoff authorization revocation, social media policies, handling of grievances, discharge for disclosure of sensitive security information, employee media communication bans, and showing of interest in the face of alleged bargaining unit “packing.”

  • Colorado Professional Security Services (27-CA-203915 et al.): In an August 7, 2018, memo, the Division of Advice concludes that an employer violated Section 8(a)(1) by maintaining overbroad work rules, but did not violate the Act by discharging one of the charging parties or by filing and maintaining its lawsuit against the charging parties. The employer’s “Harm to Business or Reputation” policy prohibiting employees from criticizing it, and the standard disciplinary letter language prohibiting employees from discussing their discipline with coworkers or clients, are Category 2 rules under Boeing that violate Section 8(a)(1) because the impact on employee NLRA rights outweighs the employer’s business justification.
  • St. Barnabas Medical Center (22-CA-224139, et al.): The March 22, 2019, memo concludes that the employer did not violate Section 8(a)(5) and (1) of the Act because unilateral changes in communications (formerly between the union directly with nursing management) and HR’s new and increased involvement in grievance processing were not material and significant changes, and there was insufficient evidence that the employer changed its practices in investigatory interviews, where the employee was not suspended for refusing to provide a written statement.
  • HFIAW, Local 10 (CB & I Construction) (15-CB-202344): Here the union maintained a rule that prohibited members from “making known the business” of the union to “any employer, employer-supported organization, or other union or organizations,” and had imposed discipline for violating the rule. The June 13, 2018, memo concludes that the charge allegation on maintaining the rule should be dismissed. However, the union’s application of the rule to the charging party violated Section 8(b)(1)(A) because the discipline it imposed affected the person’s employment prospects, and Section 7 interests outweighed the union’s interests in issuing the discipline.
  • Teamsters Local 385 (Walt Disney World) (12-CB-149945, et al.): The February 8, 2016, memo concludes that a union breached its duty of fair representation by: failing to respond to premature dues checkoff authorization revocation requests, which also contained requests for information necessary to properly revoke the authorizations; maintaining a practice of disregarding telephone and in-person requests for information about or assistance with the dues revocation process; and by failing to honor the untimely revocations that two charging parties sent after their window periods closed. The remedy for these Section 8(b)(1)(A) violations was for the union to refund employees’ dues effective to date their revocation window opened, because the employees would have timely revoked had the union responded to their revocation requests and other inquiries.
  • General Motors (07-CA-053570): In a December 20, 2011, memo, the Division of Advice concludes that an employer’s social media policy would reasonably be construed to chill the exercise of Section 7 activity, and thus, violates Section 8(a)(1), but the employer’s discipline of the charging party was not unlawful because his conduct did not amount to protected concerted activity or fall within the ambit of Section 7.
  • Colorado Fire Sprinkler (27-CA-115977): A July 10, 2014, concludes that the parties entered into a Section 9(a) relationship in an assent agreement, and that while there was uncontested extrinsic evidence that the union lacked majority support at the time the employer initially extended 9(a) recognition in 1991, the union submitted evidence demonstrating it had majority support when the employer again extended 9(a) recognition in 2005. Further, a charge that the employer violated Section 8(a)(5) by unilaterally ending contributions to the union’s benefit funds was timely filed because the union did not have clear and unequivocal notice that the employer had discontinued benefit fund contributions until well within the 10(b) period. Finally, the employer violated Section 8(a)(5) by unilaterally discontinuing contributions to the union’s benefit funds.
  • Sheet Metal Workers, Local 312 (Schoppe Co.) (27-CB-215546): In an October 22, 2018, memo, the Division of Advice determines that a union violated Section 8(b)(1)(A) by handling a charging party’s grievance in an arbitrary manner (repeated nonaction, being unresponsive, and delaying any action, even an investigation), and by willfully misleading the grievant about the status of the claim.
  • Universal Security (13-CA-178494): The November 4, 2016, memo concludes that an employer violated Sections 8(a)(1) and (3) by firing two employees for engaging in union or protected concerted activity, and that the employees did not lose the Act’s protection because, contrary to the employer’s assertion, they neither disclosed sensitive security information nor maliciously defamed the employer in the course of their Section 7 activity. Alternatively, the employer violated Sections 8(a)(1) and (3) by discriminatorily terminating the employees because of their union and protected concerted activities. The employer also unlawfully maintained an overbroad rule banning employee communications to the media and violated Sections 8(a)(1) and (3) by firing the employees pursuant to that rule.
  • Domino’s Pizza (29-CA-229500): The March 20, 2019, memo addresses whether the employer violated Section 8(a)(1) by “packing” a bargaining unit with additional, newly hired/transferred employees in order to dilute the United Crafts and Industrial Workers Union, Local 91’s showing of interest accompanying its representation petition. Rather than issuing a complaint based on an expansion of the Board’s pre-election unit-packing doctrine to the union’s showing of interest, the Division of Advice concluded that employees’ Section 7 interests, and the purposes and policies of the Act, would be best effectuated by allowing the union to proceed directly to an election based on its showing of interest.

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