Category: Chapter 3

When the current edition of the book was printed, the Supreme Court had just granted cert. in Epic Systems, in which it would review the NLRB’s determination in D.R. Horton that mandatory arbitration policies that banned class arbitration violate employees’ Section 7 rights. Below is a paragraph for the end of Chapter 3, Section 1, Note 9 (pp.163-164) that summarizes the Court’s holding in Epic Systems. The Epic Systems link contains the entire note, with the new paragraph noted.

Update:

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 200 L.Ed.2d 889 (2018), the Supreme Court stated that the NLRA “does not express approval or disapproval of arbitration. It does not mention class or collective action procedures. It does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.” Puzzlingly, Justice Gorsuch commented on Section 7’s phrase ‘other concerted activities for the purpose of . . . other mutual aid or protection’ as follows: . . . “the term appears at the end of a detailed list of activities speaking of ‘self-organization,’ ‘form[ing], join[ing], or assist [ing] labor organizations,’ and ‘bargain[ing] collectively.’ And where, as here, a more general term follows more specific terms in a list, the general term is usually understood to ‘embrace only objects similar in nature to those objects enumerated by the preceding specific words.’” Narrowly read, Epic Systems establishes that enforcement of class arbitration waivers does not violate the NLRA. But Justice Gorsuch’s expansive dicta reads the phrase “concerted activities” in a way that is much more closely linked to the activities of labor organizations than current Supreme Court authority holds. See Labor Board v. Washington Aluminum Co., 370 U.S. 9 (1962). It is too early to tell whether this language forecasts a broad change in the Court’s view of Section 7’s scope.

In Lippert Components, the NLRB concluded that a union’s use of Scabby the Rat was not a violation of Section 8(b)(4). The update has material for both Chapter 3, Note 2 (p. 183) and (most relevant) Chapter 10, Note 6 (p. 680).

The NLRB’s recent Charles Robinson case created a new exception to the material in Chapter 4 discussing the differences between Sections 8(a)(1) and 8(a)(3). In particular, under Charles Robinson the NLRB will now use the motive-based Wright Line analysis for a subset of independent Section 8(a)(1) cases–those involving an employee’s “offense outburst.” The attached material, which is copied below, should be added to the end of Chapter 4, Section 2.A, on page 211:

Recently, the NLRB created an exception to the principle that motive is not required to find a violation of Section 8(a)(1). In Charles Robinson and General Motors, 369 NLRB No. 127 (July 2020)—a case involving alleged offensive statements made by an employee during  protected activity—the Board said that it would apply the motive-based Section 8(a)(3) Wright Line analysis [which is explored in the next section of the book] to a wide variety of Section 8(a)(1) discharge cases. The decision is in tension with the Supreme Court’s opinion in NLRB v. Burnup & Sims, 379 U.S. 21, 22-23 (1964) (upholding a Section 8(a)(1) violation despite employer’s arguable good faith) and, more generally, with the idea that motive is not relevant to whether an employer has violated Section 8(a)(1). The traditional analysis is that if an employer engages in conduct that would reasonably tend to interfere with, restrain, or coerce employees in the exercise of Section 7 rights, a Section 8(a)(1) violation is found—irrespective of motive—unless the employer can supply a business justification for its conduct. That analysis still applies to most Section 8(a)(1) cases, with the exception now for offensive “outburst” cases. Under Charles Robinson’s modification of the previous Atlantic Steel analysis, offensive outburst cases now use the motive-based Wright Analysis.

The Boeing Co. (2017) case could be read with the material in Chapter 3, Section 3 (page 170) “Legitimate Means for Concerted Activity” or with Chapter 5, Section 1.c (page 272) “Electronic Communications.”

The Boeing Co. represents the NLRB’s new approach to determining whether general workplace rules violate employees’ Section 7 rights (e.g., social media policies, no photography rules, computer use policies, etc.). This case is especially important for non-union employees, although it applies in the union and non-union context.