In adopting the ALJ’s Recommended Order in S&S Enterprises, LLC d/b/a Appalachian Heating, Case No. 09-CA-235304, the NLRB found that a leaflet distributed by the employer during union organizing efforts, which stated that it is against federal law for a labor union to threaten employees, did not violate the NLRA because it did not constitute the promulgation and maintenance of a new policy, as the union alleged.

Factual Background

In late 2018, the employer, which sold, installed, and serviced HVAC systems, became the target of unionization efforts.  Eventually, the union brought multiple unfair labor practice charges against the employer, many of which the ALJ agreed constituted unlawful conduct.

While these “persistent and wide-ranging unfair labor practices” convinced the ALJ, and later the NLRB, to favor a broad cease-and-desist order against the employer, the ALJ was not convinced by certain allegations that a leaflet issued by the employer violated the Act.

The employer distributed a leaflet to most employees with their mailed paycheck stubs, which depicted one faceless figure jabbing its finger in another’s face and contained the following bullet points:

  • We are being told that some Sheet Metal union supporters are threatening some of our workers.
  • It is a violation of Federal Law for a labor union to threaten employees.
  • It is also a violation of Appalachian Heating’s anti-harassment policy, which says in part, “…Appalachian heating is committed to a work environment in which all individuals are treated with respect and dignity. Each individual has the right to work in a professional atmosphere that promoted equal employment opportunities and prohibits unlawful discriminatory practices, including harassment…”
  • Let me remind each of you that, although we respect the rights of our workers to support or not support a labor union, we will not permit anyone to violate the legal rights of our employees who wish to fight for or against a labor union.
  • Anyone caught threatening our employees or otherwise violating their rights will be subject to criminal prosecution to the fullest extent of the law.
  • Appalachian Heating will protect all of our workers and will not tolerate threats or harassment!

If you feel your rights to support or not support a labor

union are being violated you are free to contact the

NLRB:

National Labor Relations Board John Weld Peck Federal

Building 550 Main Street, Room 3003

Cincinnati, OH 45202-3271

513-684-3638

Information.Officer@nlrb.gov

 

Board Finds the Leaflet is Not Reasonably Understood to Constitute a New Rule or Policy

The NLRB GC alleged that the leaflet, by including reference to the employer’s anti-harassment policy alongside notice of potential penalties for violating federal labor law, effectively constituted a new policy.  The alleged new policy amended the existing anti-harassment policy to include criminal prosecution.  If true, then the promulgation of a new disciplinary rule during a union organizing campaign violated the Act because it fails to maintain the status quo during this period.

However, the NLRB was unconvinced and adopted the Judge’s recommendation that the Employer had not promulgated a new rule or policy.

First, the Board summarily dismissed the GC’s promulgation theory, stating that the insert cannot reasonably be understood as a statement of or promulgation of a new rule.

Second, both the Complaint and GC’s brief misrepresented language not in the leaflet as a direct quotation.  Both filings claim that employer created the following rule: “That anyone who violates the anti-harassment policy or is caught threatening employees or otherwise violating their rights will be subject to the fullest extent of the law.”  This language does not appear in the insert.  While the ALJ did not attribute the inaccuracy to “design” instead of “error,” it nevertheless dismissed this allegation, which the Board affirmed.

Board Also Finds the Leaflet is Not an Unlawful Threat

Alternatively, the GC argued that the insert threatened employees for engaging in union activity.  The NLRB agreed with the ALJ’s decision not to consider this argument, as it was not pled in the original Complaint.

Member McFerran Dissented, which Could Foreshadow How the Future Board May Rule

Member McFerran dissented, finding that the GC properly pled the alternate theory that the leaflet constituted an unlawful threat in violation of Section 8(a)(1) of the Act.  McFerran concluded that the leaflet was an unlawful threat because the employer equated union activity with unlawful harassment under its workplace policy in the context of what the NLRB admits were wide-ranging antiunion efforts.  In addition, the “coercive effect of this threat was heightened by the fact that employer conveyed it to employees alongside their paychecks.”

McFerran’s colleagues directly responded to this argument.  For the Majority, even if this theory had been adequately pled, the leaflet was not a threat because it specifically provided that employees should contact the Board’s regional office where their rights “to support or not support a labor union” were violated, and that the Employer “w[ould] not permit anyone to violate the legal rights of our employees who wish to fight for or against a labor union.”  (Emphasis added).  According to the Majority, the leaflet merely reminded employees of their Section 7 rights–including the right to join or not join a union.

Takeaways

This decision provides important reminders to employers during a unionization effort.

First, employers may not issue new rules or policies after becoming aware of a union organizing effort–and certainly not after a representation petition seeking an election has been filed with the Board.  Employers must maintain the status quo during this period, which the Board calls the “critical period.”  This is true regardless of whether the policy benefits or harms the employees.  In this case, the Board found that the leaflet did not constitute the promulgation of a new rule or policy, but merely reinforced application of an existing one, so no violation was found.

Second, it is permissible to remind employees of their rights under the National Labor Relations Act, including their ability to avail themselves of legal recourse through the NLRB if they believe those rights are being violated.

Though the Board did not consider the GC’s alternative argument that the leaflet, in whole, constituted an unlawful threat, the Majority’s rebuttal to Member McFerran’s dissent on that topic may be most helpful for those seeking guidance from the decision.  There, the NLRB made clear that the objective language of the leaflets which appear impartial and merely remind employees of their Section 7 rights and their ability to engage in protected, concerted activity–in this case, clarifying that federal labor law protects both those supporting and opposing unionization–likely would not be deemed unlawful threats against protected, concerted activity.

Member McFerran’s dissent focused more squarely on the circumstances of the leaflet, as a whole, to find a violation under this alternative theory, such as the fact that it was attached to the employees’ paystubs, and in context of the broader, alleged anti-union efforts engaged in by the Employer.  Given that the composition of the Board will start to change after August 27, 2021 (when Member Emanuel’s term ends), McFerran’s reasoning may inform how a newly constituted Board decides this allegation in the future.

Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.

Photo of Jacob P. Tucker Jacob P. Tucker

Jake Tucker is an associate in the Labor & Employment Law Department.  He represents a diverse range of clients across industries, including professional sports, finance, publishing, education, and real estate.

Jake frequently counsels on a wide variety of employment matters, including workplace investigations…

Jake Tucker is an associate in the Labor & Employment Law Department.  He represents a diverse range of clients across industries, including professional sports, finance, publishing, education, and real estate.

Jake frequently counsels on a wide variety of employment matters, including workplace investigations, employee leave and accommodation, and policies and practices related to the COVID-19 pandemic. Jake also routinely drafts workplace policies and conducts trainings on topics such as discrimination and harassment in the workplace.  As part of his employment litigation practice, Jake has assisted clients in defending against single-plaintiff lawsuits and collective actions in federal and state court, as well as arbitration.

Before joining the Firm, Jake earned a J.D. from Cornell Law School, where he served as an articles editor of the Journal of Law and Public Policy and a member of the Sports & Entertainment Law Society. He also interned in the Labor Relations Department of Major League Baseball and the Law Department for the Brooklyn Nets and Barclays Center.

Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.