Nlra Case Notes

• Jurisdiction: California,United States,Federal
• Author: By Richa Amar and Jonathan Cohen
• Publication year: 2020
• Citation: Vol. 34 No. 5

NLRA CASE NOTES

By Richa Amar and Jonathan Cohen

Richa Amar is an attorney with the California Teachers Association, a labor union representing 325,000 educators throughout California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

BOARD OVERTURNS PRECEDENT REGARDING WORKPLACE SOLICITATION

Wynn Las Vegas, LLC, 369 NLRB No. 91 (May 29, 2020)

The National Labor Relations Board (Board) reversed Wal-Mart Stores¹ and ConAgra Foods, Inc.² regarding the scope of a lawful no-solicitation policy. Under the Board's new rule, an employer may prohibit an employee from encouraging co-workers to vote for or against a union, regardless of whether there is a contemporaneous tender of a union authorization card or petition. The Board also held that such solicitation may be prohibited regardless of whether it creates a significant interruption.

Following her shift, a casino dealer spoke to an on-duty security officer about an upcoming union election for security officers. The dealer encouraged the security officer to support the union, and shared her own experiences with unionization. In all, their conversation lasted about 3 minutes. During that time, numerous guests and employees passed them and at least one casino guest bypassed the security officer to ask his colleague for assistance. The casino thereafter disciplined the dealer pursuant to its policy, which provided as follows: "All . . . solicitation by employees is prohibited in work areas during the work time of the employee initiating the solicitation or the employee being solicited."

The Board rejected the General Counsel's argument that the casino dealer was engaged in a protected discussion with her co-worker, not solicitation under the casino's policy. In reaching that conclusion, the Board rejected the "extremely narrow" view described in Wal-Mart and Con-Agra Foods that "in order to constitute union solicitation, the solicitor's conduct must include the contemporaneous tender of a union authorization card." Although acknowledging that "solicitation for a union ordinarily means that someone is asking an employee to join a union by signing a union authorization card," the Board held that "solicitation for or against a union also encompasses the act of encouraging employees to vote for or against union representation." According to the Board, "defining solicitation to also encompass the act of encouraging an employee to vote a particular way in a union election is consistent with the purpose of employers' no-solicitation rules, which is to prohibit conduct that interrupts business operations."

Additionally, the Board concluded that Wal-Mart and Con-Agra Foods mistakenly held that solicitation is lawful if there is only a "brief" interruption of work. Thus, the Board held that "an actual interruption of work should not be a factor in determining whether a no-solicitation policy has been violated." The Board reasoned that "a requirement that there be a significant interruption, or indeed any interruption, of work to constitute prohibited solicitation interferes with the balance" between employees' right to organize and an employer's right to maintain discipline.

OVERRULING BOARD PRECEDENT, BOARD ADOPTS STANDARD THAT SUBSTANTIALLY LIMITS JURISDICTION OVER RELIGIOUS SCHOOLS

Bethany College, 369 NLRB No. 98 (June 10, 2020)

In a 3-0 decision, the Board overruled Pacific Lutheran University³, and adopted the bright-line test articulated by the D.C. Circuit Court of Appeals in University of Great Falls v. NLRB⁴, for determining whether a religious school is subject to the Board's jurisdiction. Applying the Board's prior jurisdictional standard, the ALJ not only found that faculty at a religious college were subject to the Board's jurisdiction, she ruled that the college had committed various unfair practices that violated the National Labor Relations Act (Act), including unlawfully discharging employees for their protected activities. The Board reversed the ALJ's findings and dismissed the complaint.

In NLRB v. Catholic Bishop of Chicago⁵, the Supreme Court ruled that the Act does not give the Board jurisdiction over teachers in a church-operated schools—regardless of whether the school is religious or just "religiously associated"—because teachers play an important role "in fulfilling the mission of a church-operated school," and such jurisdiction would conflict with the First Amendment's Religion Clauses. After the Board subsequently asserted jurisdiction over teachers at religious universities, the D.C. Circuit, in University of Great Falls v. NLRB⁶, articulated a "bright-line test" for the Board to determine whether an institution is exempt from the NLRA under Catholic Bishop. The "Board should consider whether the institution: (a) holds itself out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated."⁷ If all three prongs are met, the Board cannot exercise jurisdiction.⁸ In Pacific Lutheran University⁹, the Board adopted a new test, in which a religious university could avoid NLRB jurisdiction if it showed that (1) "it holds itself out as providing a religious educational...