Corporate, Litigation, and Labor & Employment Lawyers

Honolulu and Hilo, HI

Key Recent NLRB Decisions September/October 2019

LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 10, 2019)

The decision confirms an employer may prohibit employees from disclosing client/vendor lists and that the Board generally categorizes rules that prohibit the disclosure of confidential and proprietary customer and vendor lists as Category 1(a) rules under Boeing.  The decision also confirms an employer may prohibit employees approached for an interview and/or comments by the news media from providing any information on the employer’s behalf.

The Board reversed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(a)(1) by maintaining two rules in its employee manual—the “Confidentiality & Non-Disclosure” rule and the “Media Contact” rule.

Beena Beauty Holding, Inc. d/b/a Planet Beauty, 368 NLRB No. 91 (Oct. 8, 2019)

The Board held the employer violated Section 8(a)(1) by maintaining its mandatory arbitration agreement because, when reasonably interpreted, it interferes with employees’ access to the Board and its processes.  The Board found the agreement plainly makes arbitration the exclusive forum for the resolution of all claims except for workers' compensation or unemployment compensation benefits, including claims arising under the Act.  The Board placed the agreement in Boeing Category 3.

MV Transportation, Inc., 368 NLRB No. 66 (Sept. 10, 2019)

The Board considered whether the Respondent violated Section 8(a)(5) and (1) by implementing five work policies without first bargaining with the Union, including the Respondent’s argument that this unilateral action was permitted by the parties’ collective-bargaining agreement.  The Board reversed controversial precedent and held it would no longer apply the “clear and unmistakable waiver” standard in determining whether the agreed language in a collective bargaining agreement relinquishes the union’s right to bargain as to any change made by the employer.  Under the clear and unmistakable standard, an employer’s unilateral action violated the Act unless a contractual provision, granting an employer the right to act unilaterally, unequivocally and specifically referred to the type of employer action at issue.  Now, the Board will apply for a “contract coverage” analysis to determine whether the issue is within the “scope” or “compass” of the existing contractual language and, if so, the employer will not have a continuing duty to bargain.

Applying the contract coverage standard retroactively, the Board found that each of the Respondent’s work policies (concerning the addition of light-duty work assignments and the setting of disciplinary standards for safety, schedule adherence, security sweeps/breaches, and driving) falls within the compass or scope of language in the collective-bargaining agreement that granted the Respondent the right to assign employees, to discipline employees, and to issue reasonable rules and policies related to employee discipline.  Thus, the Board found that the Respondent did not violate the Act by unilaterally implementing these work policies.

Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (Sept. 6, 2019)

The Board overruled Sandusky Mall Co., 329 NLRB 618 (1999) based on the view that these cases improperly stretched the NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105 (1956) discrimination exception well beyond its accepted meaning in a manner that finds no support in Supreme Court precedent or the policies of the Act.

The Board explained now to establish that a denial of access to nonemployee union agents was unlawful under the Babcock discrimination exception, the General Counsel must prove that an employer denied access to other nonemployee union agents while allowing access to other nonemployees for activities similar in nature to those in which the union agents sought to engage.  An employer may deny access to nonemployees seeking to engage in protest activities on its property while allowing nonemployee access for a wide range of charitable, civic, and commercial activities that are not similar in nature to protest activities.  An employer may also ban nonemployee access for union organization activities if it also bans comparable organizational activities by groups other than unions.  This approach is consistent with the policies of the Act, while at the same time giving due recognition to an employer’s property right to exclude nonemployees.

The Board applied the above standard and reversed the Administrative Law Judge’s finding of a violation because the General Counsel did not show the Respondent ever permitted any nonemployees, whether affiliated with a union or not, to engage in protest activities on its premises comparable to the boycott solicitation at issue in this case.


Categories: Labor Law Blog