Earlier this 12 months, the Workplace of the Normal Counsel (GC) of the Nationwide Labor Relations Board (Board) issued an Recommendation Memorandum in Case 05-CA-281089 instructing Board Area 5 to problem a grievance alleging that the employer, LT Transportation (a shuttle bus transportation supplier), violated Part 8(a)(1) of the Nationwide Labor Relations Act, when it banned nonemployee union organizers from boarding its shuttles due to their identification as union organizers. The GC additionally directed the Area to make use of the case as a car to argue that that two Board precedents, UPMC, 368 NLRB No. 2 (June 14, 2019) and Kroger, 368 NLRB No. 64 (2019), ought to be overruled as a result of, within the view of the GC, they narrowed worker rights set forth in two U.S. Supreme Court docket instances, NLRB v. Stowe Spinning Co., 336 U.S. 226, 233 (1949) and NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956).
Stowe and Babcock
In Stowe, america Supreme Court docket held that an employer violated Part 8(a)(1) of the Act by discriminating in opposition to nonemployee union organizers when it permitted exterior neighborhood teams to make use of a gathering corridor on the employer’s non-public property, however prohibited nonemployee union organizers from utilizing the identical assembly corridor. In Babcock, the Supreme Court docket formally established a framework for analyzing whether or not an employer has unlawfully excluded nonemployee union representatives from its non-public property, which included the discrimination exception established in Stowe.
The cornerstone of the discrimination exception is whether or not an employer excluded nonemployee union organizers from its non-public property, however didn’t exclude different “similarly situated” people or organizations. See Stowe, 336 U.S.at 233.
The NLRB GC’s Place Regarding UPMC and Kroger
The GC interprets UPMC as improperly limiting the discrimination exception established in Stowe and Babcock by allowing employers to ban nonemployee union organizers from partaking in sure conduct on non-public property. In UPMC, the Board interpreted the discrimination exception to use to the identities of people, somewhat than the conduct of such people. The Board, counting on the “similarly situated” part of Stowe, decided that an employer was free to allow, or prohibit, sure conduct on its non-public property, as long as it didn’t permit non-union individuals to have interaction in conduct much like that which the employer prohibits union organizers from partaking in on its non-public property.
The union organizers’ conduct in UPMC was comprised of (1) sitting at tables within the employer’s cafeteria that held union flyers and pins, (2) consuming lunch, and (3) speaking with the employer’s staff in regards to the union. Id. at 1-2. The Board in UPMC decided that the union organizers’ conduct was “promotional activity,” which was prohibited by the employer. Id. at 9-10. Within the Recommendation Memorandum, the GC disagrees with the UPMC Board’s reality dedication that the union organizers’ conduct was “promotional activity.” Whereas the Recommendation Memorandum doesn’t include a fulsome authorized evaluation of how the UPMC holding conflicts with the discrimination exception set forth in Stowe and Babcock, the GC urges the Area to argue that UPMC improperly narrows the discrimination exception.
As with UPMC, the GC interprets Kroger to improperly restrict the discrimination exception. In Kroger, the Board affirmed that an employer engages in illegal discrimination throughout the that means of the discrimination exception when it treats union-related actions much less favorably than related actions that aren’t union-related, and dominated that the aim behind the actions is instructive when figuring out whether or not the actions are “sufficiently similar” to invoke the discrimination exception.
Within the Recommendation Memorandum, the GC once more urged the Area to argue that Kroger be overruled as a result of Kroger takes into consideration not solely the conduct engaged in by union organizers, however the function behind the conduct. The GC concludes that, as a result of Kroger appears to the aim behind the conduct, it improperly narrows the discrimination exception by allowing an employer to disclaim entry to nonemployee union organizers who’re engaged in conduct much like that engaged in by, for instance, a charitable group, the place the aim behind the union organizers’ conduct (organizing staff, for instance) differs from the aim behind the conduct of the charitable group (fund elevating, for instance). Once more, nevertheless, the Recommendation Memorandum doesn’t include authorized evaluation supporting the GC’s rivalry that the discrimination exception precludes consideration of the aim behind the conduct when figuring out whether or not the conduct is sufficiently related.
Within the Recommendation Memorandum issued within the LT Transportation case, the GC decided that the employer’s conduct fell throughout the discrimination exception as utilized in UPMC and Kroger. After studying that nonemployee union organizers had been (1) boarding LT Transportation’s shuttles; (2) talking with LT Transportation’s staff—the shuttle drivers—about phrases and circumstances of the drivers’ employment; and (3) discussing union organizing in a nondetailed method with the drivers, counsel for LT Transportation knowledgeable counsel for the union that LT Transportation would take authorized motion in opposition to the nonemployee union organizers who boarded LT Transportation’s shuttles. As a result of LT Transportation successfully banned nonemployee union organizers from boarding LT Transportation’s shuttles, the GC decided that the prohibition was aimed immediately on the identification of the nonemployee union organizers as brokers of the union, and thus fell squarely throughout the discrimination exception. Whereas the GC’s place in LT Transportation isn’t sudden, the Recommendation Memorandum supplies perception into the targets of the GC, which seem to incorporate increasing the Act on the expense of employer non-public property (and different) rights. Nonetheless, as a result of the Recommendation Memorandum lacks a fulsome authorized evaluation of how UPMC and Kroger battle with the contours of the discrimination exception set forth in Stowe and Babcock, it raises questions on whether or not the GC’s targets are in keeping with Supreme Court docket precedent and the Act itself.