NLRB Decisions Week of August 15-19, 2016: Christine K. D. Belcaid

In Retro Environmental, Inc./Green Jobworks, LLC, 05-RC-153468, 364 NLRB No. 70 (August 16, 2016), the Board applied its Browning-Ferris standard for joint employers and ordered an election, ruling the staffing agency and its construction company client were joint employers even though the companies' projects were scheduled to end shortly at the time of the hearing.  The Board explained because the two companies worked together on many projects, it was foreseeable that they would do so again.  The employers failed to show a cessation of their joint operations was both imminent and definite.

The election will likely use the construction industry voter eligibility formula, allowing employees who are not working at any jobsite of the joint employers on the date of the election to vote if they (a) were employed at least 30 days within the 12 months preceding the eligibility date for the election, or (b) had some employment in those 12 months, and were employed for 45 days or more within the 24-month period immediately preceding the eligibility date.  Steiny and Co., Inc., 308 NLRB 1323 (1992).

In Burndy, LLC, 34-CA-065746, 34-CA-078077, and 34-CA-079296, 364 NLRB No. 77 (August 17, 2016), the employer violated Section 8(a)(1) by applying a work rule prohibiting talking about union matters during work time, threatening employees with discipline and unspecified reprisals in retaliation for their union support and activities, creating the impression of surveillance of employees' union activities, maintaining a public statements policy prohibiting employees from responding to media inquiries without prior approval and limiting which employees can respond to media inquiries, and maintaining a general rule that prohibits solicitation for any unauthorized purpose on company time.  In analyzing the work rule prohibiting talking about union matters, the Board focused on whether the employer prohibited employees from discussing all subjects during work time, as an employer violates the Act when it only prohibits union-related discussions.  The decision did not take into consideration whether the employer only prohibited employees from discussing union matters when it interfered with work.  The employer created an unlawful impression of surveillance because the plant manager told an employee, who was the president of the Local, if he saw him speaking to other employees, a write-up would ensue.  The Local president could reasonably conclude that his interactions with other employees would be subject to heightened managerial observation in the future, and would presume to involve the union.

In Chipotle Services LLC d/b/a Chipotle Mexican Grill, 04-CA-147314 and 04-CA-149551, 364 NLRB No. 72 (August 18, 2016), the employer violated Section 8(a)(1) by maintaining various work rules.  However, the Board, without any analysis, reversed the Administrative Law Judge's finding that the employer violated Section 8(a)(1) by directing an employee to delete certain tweets from his Twitter account, including a tweet to a customer stating "nothing is free, only cheap #labor.  Crew members only make $8.50hr how much is that steak bowl really?".  The Board's only explanation for this reversal was that the employee's underlying actions were not concerted.

Categories: Labor Law Blog