Nlra Case Notes

• Publication year: 2022
• Author: Jonathan Cohen

NLRA CASE NOTES

AUTHORS^*

Jonathan Cohen

Maria Myers

REGIONAL DIRECTORS RETAIN ABILITY TO DISMISS REPRESENTATIONS PETITIONS TAINTED BY UNFAIR LABOR PRACTICE CONDUCT

Rieth-Riley Const. Co., 371 N.L.R.B. 109 (2022)

The Board unanimously ruled that its Election Protection Rule,¹ effective April 1, 2020, did not eliminate regional directors' ability to dismiss representation petitions tainted by unfair labor practice conduct. However, the Board split 3-2 on whether a regional director must first hold a hearing to determine if the representation petition was caused by the employer's the unfair labor practice conduct.

Operating Engineers Local 324 represents employees of Rieth-Riley Construction Co., an asphalt and paving company. Following an investigation, the Regional Director issued an unfair labor practice complaint alleging the employer engaged in various unfair labor practices. While that complaint was pending, an employee filed a decertification petition, which the Regional Director held in abeyance—or "blocked"—pending resolution of the unfair labor practice complaint.

After issuance of the Board's Election Protection Rule, which substantially limited the ability of regional directors to block representation petitions, the employee filed a second decertification petition. However, prior to the decertification election, the Regional Director conducted an investigation and, applying the factors set forth in Master Slack Corp.,² found that the unfair labor practices alleged in the complaint, if proven, would have caused the employee disaffection underlying the pending decertification petitions. The Regional Director thus dismissed both petitions, subject to reinstatement at the conclusion of unfair labor practice proceedings, finding a "causal nexus" between the unfair labor practices and the representation petitions.

On review, the Board unanimously rejected the employer's and petitioner's argument that the Election Protection Rule precluded regional directors from issuing so-called "merit-determination dismissals" of representation petitions. Although the Board agreed the new rule "clearly modifies the Board's practices for holding petitions in abeyance, it does not speak to merit-determination dismissals, either explicitly or implicitly."³ The Board found that "neither the Board's final rule nor preamble to the rule mentioned merit-determination dismissals, much less overruled published precedent relating to such dismissals."⁴

Notwithstanding its unanimity on the continued availability of merit-determination dismissals, the Board split 3-2 on whether a regional director must hold a hearing pursuant to Saint Gobain Abrasives, 342 NLRB 434 (2004), before determining there is a causal connection between the alleged unfair labor practice conduct and the pending representation proceeding. The Board's majority held that Saint Gobain does not require such a hearing in every case, and that regional directors retain authority to determine the existence of a causal nexus "as a matter of law."⁵ Such a hearing "is only necessary where, to quote Saint Gobain itself, there are 'significant factual issues as to the impact of' the alleged conduct."⁶ The majority found no such factual issues in this case, and affirmed the Regional Director's decision to dismiss the petitions. Finally, the Board noted that a merit-determination dismissal was warranted even absent a "causal nexus," given that the General Counsel sought an affirmative bargaining order in the underlying unfair labor practice complaint.

Dissenting, Members Kaplan and Ring concluded that Board precedent "requires that before dismissing a petition based on an alleged causal nexus, there must be a 'causal nexus' hearing as prescribed by Saint Gobain. . . ."⁷ According to Members Kaplan and Ring, "[a]bsent such a hearing, there is little practical difference between a merit-determination dismissal and the practice,

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under the former blocking charge policy, of placing election petitions in abeyance while unfair labor practice charges are investigated. In both situations, the petition is placed on hold on the basis of unilateral administrative determinations by a regional director subject to limited review by the Board."⁸

THIRD CIRCUIT REJECTS BOARD'S DECISION THAT "SALT MINES" TWEET WAS UNLAWFUL

FDRLST Media, LLC v. NLRB, 35 F.4th 108 (3d Cir. 2022)

The Third Circuit granted a petition for review of FDRLST Media from a Board decision holding that a tweet by the internet magazine's publisher violated Section 8(a)(1) of the Act. The tweet, posted from the publisher's personal Twitter account, read: "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine."⁹

FDRLST Media operates The Federalist, which the court described as a "right-leaning internet magazine that publishes commentary on cultural, political, and religious issues of current interest, including labor issues."¹⁰ On June 6, 2019, media outlets reported that unionized employees of Vox Media, another digital media company, walked off the job during contract negotiations. That same day, FDRLST Media's publisher posted the above-described tweet from his personal account, which had more than eighty thousand followers, and tagged "@fdrlst," The Federalist's official Twitter account. At the time, the magazine had seven employees, six of whom were writers and editors at The Federalist. At least one employee viewed the tweet, but the record did not show that any employee expressed concern about the tweet. The day after the tweet, a Massachusetts resident with no connection with FDRLST Media filed an unfair labor practice charge with the Board's New York Region alleging the tweet violated section 8(a)(1) of the Act.

Following issuance of an unfair labor practice complaint, an administrative law judge (ALJ) rejected the employer's motions to dismiss for lack of subject matter and personal jurisdiction, and improper venue. At trial, counsel for the General Counsel did not call any witnesses. Rather, he pointed to The Federalist's editorial...