The NLRB: What’s the Latest, and What to Expect for 2021?

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon’s topic is titled “The NLRB: What’s the Latest and What to Expect for 2021?” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call.

 

Today, we are fortunate to have with us Roger King, who is a Senior Labor and Employment Counsel for HR Policy Association. We also have Philip Miscimarra, who’s a partner at Morgan Lewis & Bockius and is a former chairman of the National Labor Relations Board. Before we kick off today, I want to point out to everyone that both of our speakers today have PowerPoint slides posted to our website for this program.

 

You can access that event page by either clicking on the advertising email you may have received or by just going to fedsoc.org. From the main fedsoc.org page, you can scroll down, and you’ll see a teleforum call list column on the right. And today’s call will be right at the top of that list. After our speakers conclude with their opening remarks and discussion, we’ll then move to a live audience Q&A. Thank you both for sharing with us today. And Roger, the floor is yours.

 

G. Roger King:  Thank you, Micah. Thank you for including Phil and I in The Federalist Society Teleforum series. It’s great for me to be with Philip Miscimarra, one of the leading experts in the country on National Labor Relations Act law and, as noted, former chair of the National Labor Relations Board and former acting chair before he assumed that role. So he has just a great background in this area. And he and I have collaborated on a number of educational sessions such as this in the past. We’ve also testified together before the Congress. And Philip, it’s a pleasure to welcome you this morning to The Federalist Society Teleforum.

 

Philip A. Miscimarra:  It’s great to be here, and there’s been a lot going on with our friends at the National Labor Relations Board. And Roger, I know that you’ve got a lot of material to cover. And I’ll be talking a little bit about the NLRB’s rulemaking, which is somewhat unusual and much more active than has been the case in the Board’s 85-year history.

 

G. Roger King:  Well, Phil’s going to be interjecting throughout before we get to rulemaking, which we will get to. So let’s start. Phil and I are both going to follow to a certain extent the materials that Micah mentioned that are posted on The Federalist Society website. So we really strongly encourage you to log on to that website and to have those materials in front of you.

 

So labor law is front and center as we move through the transition process. As you’ll see on the slides that we have furnished, front and center of the Biden-Harris administration is its economic recovery plan. And included in that plan is a strong reference to the pending legislation in the Congress protecting the right to organize -- the so-called PRO Act.

 

It’s right on the front page of their economic recovery website. And as one of my colleagues pointed out the other day, in the transition materials, unions are mentioned no less than I think he said 15 times in the beginning materials as the Biden-Harris transition plan unfolds. So certainly the labor movement was active in the presidential campaign, certainly very much involved in supporting the Biden-Harris ticket.

 

And moving to what you’ll see is our second slide, President Biden stated on September 7 of this year that he was going to hold company executives personally liable for interfering with workers who are attempting to unionize. And that’s a rather bold statement. But I think the president-elect certainly believes in that statement and that he’s going to make sure that employers pay a penalty, he has said, if they interfere, from his perspective, with worker rights.

 

He also went on in that same statement, as you’ll see, to say that he’s going to make sure that employers and their representatives perhaps pay a personal price. I’m not exactly sure what that means. But he concluded by saying, “I’m going to be the strongest labor president you’ve ever had.” So those are very substantial statements from our president-elect.

 

So what can we expect from this administration? And we’re now on slide three. Well, certainly we’ll have an entirely new team at Department of Labor. Will it be Senator Sanders? Will it be the congressman from Michigan? Will be it be Mayor of Boston? A lot of different names out there. Mayor Walsh obviously has been prominently mentioned, so we’ll see.

 

But in any event, it’s going to be an entirely new leadership team at DOL, a very aggressive team on regulations no doubt, labor law reform, Phil, probably through federal contractor requirements, if nothing else, if the PRO Act cannot get through a, perhaps, Republican Senate. And we’re going to see just a lot of regulation, we think, from the new DOL. And we’re going to see a lot of other initiatives, particularly the PRO Act, as mentioned, is going to be prominent in the Biden-Harris legislative initiatives. Now, we have provisions of the PRO Act on slides five and six. And Phil, let me just stop here. Your thoughts and analysis of this?

 

Philip A. Miscimarra:  Well, I think the PRO Act is probably the most extensive legislation in terms of its breadth and the impact on existing labor law principles than we’ve seen dating all the way back to 1947, which would be 60 plus years ago. It would change a lot about the way union representation elections occur. It would effectively override right to work states. It would remove the prohibitions on secondary boycotts that have existed going all the way back to 1947, which was strengthened in 1959.

 

Many people on this teleforum may not know what a secondary boycott is. But the prohibitions against secondary boycotts essentially indicate that if Roger were a union and had a dispute with a particular employer, say, me, secondary boycott prohibitions in existing law would prohibit a union from expanding the labor dispute to reach everybody else in the country or globally that has a business relationship with the primary employer that’s involved in the dispute. And that would be eliminated under the PRO Act.

 

One other change that the PRO Act would make is it would eliminate party status for employers in union representation elections. And all of those are very significant changes, and there are at least a dozen more that would be part of the legislation.

 

G. Roger King:  Well, Phil, I certainly concur. The secondary boycott area is one that both union and nonunion employers would be potentially greatly impacted by that change in the law. And it could bring many disputes into the workplace of totally neutral employers and very troublesome.

 

We’re going to have a teleforum in December that The Federalist Society is supporting and sponsoring on the PRO Act. So we won’t delve any further into it this morning or this afternoon. But we do want to bring it to your attention. That is a central point, as I mentioned, of the Biden-Harris labor initiatives and certainly is one area to closely watch.

 

Well, let’s move from the PRO Act, which may be academic, by the way, if the Republican party prevails in one or both of the Georgia runoff elections in January. A Republican Senate under Leader McConnell’s direction would in all likelihood not even consider the PRO Act if it were to be passed again by the House. So it may be academic, but it certainly is of concern.

 

Let’s go to slide seven, and that’s a pictorial representative of the current composition of the National Labor Relations Board and its general counsel. And as you see, we have three Republican members serving on the Board and one Democrat member, Lauren McFerran. The Board is led by NLRB Chairman John Ring, who, from my perspective and I think Phil’s, has done just an excellent job in leading the Agency.

 

We have Republican members Marvin Kaplan and William Emanuel, also outstanding lawyers in their own right and very active in NLRB matters. And I think Phil and I both agree Laruen McFerran, although we may disagree with her on policy matters, very thoughtful, very bright collegial member of the Board and someone I know that we have a high opinion of. But you see that there’s a vacancy. The vacancy is for a Democrat member.

 

As you know, the Board is made up of five members. The party occupying the White House by tradition, although not by statute, has three of those five slots. And the so-called minority party at that time would have two of five if the Board is fully staffed, if you will, with members. So it remains to be seen when and if that Democrat vacancy will be filled. One would expect the Biden-Harris administration to make a nomination shortly after President-Elect Biden takes office. And it remains to be seen what the Republican Senate, if it indeed is a Republican Senate, would do with such a nomination.

 

We don’t want to ignore the importance, however, of the general counsel position, Peter Robb. General Counsel Robb also, I think from our respective positions, gets very high marks. Phil and I have been quite impressed with his work ethic and his ability to move cases. Indeed, the entire Agency, Phil, I think has had just an excellent record in processing cases over the last few years.

 

Philip A. Miscimarra:  I’ll break in, Roger, just for a second.

 

G. Roger King:  Sure. Absolutely.

 

Philip A. Miscimarra:  That’s been one of the ongoing challenges with the Board is that in many instances -- I used to say when I served on the Board for four and a half years parties cannot afford to win an NLRB case because the process costs and uncertainty associated with the time that it takes a case to get through the Agency -- it’s a very long gauntlet. And the Board adopted -- the current Board, both Chairman Ring and Peter Robb as General Counsel, adopted a goal of accelerating case processing time by 20 percent over a four-year period, 5 percent per year. And they’ve substantially exceeded all of those goals that they set, not only in Washington, D.C., but for their various regional offices.

 

G. Roger King:  Well, excellent points, and we hope that the Board will continue that. And it’s very important for all stakeholders. Now, just two closing comments regarding the Office of General Counsel and Board composition. General Counsel Robb’s term expires in November of this year. So the president-elect will have an opportunity to name a replacement. It’s a very important position. The General Counsel is the chief lawyer for the Board, really has operational control over all the regional offices of the Board. So I’d watch that development closely.

 

And Member Emanuel’s term, as you will see on our slide seven, expires on August 27 of 2021. So in August of 2021, hypothetically if Member Emanuel’s position or seat is filled by a Democrat, the Board will change over to a Democrat controlled Board. But again, that depends upon nominations being received by the Senate and processed by the Senate for Member Emanuel’s seat in August of next year and also whether the current Democrat vacancy on the Board will be filled in the near term. Phil, any comments on General Counsel and NLRB composition before we move on?

 

Philip A. Miscimarra:  No, but the big variable occurs, of course, whenever there’s a change in administrations -- how quickly any changes would take place. And I was on the NLRB during the last change in administrations. And there were two vacancies on the Board at the time that President Trump assumed office.

 

And it still took eight months for one of the vacancies to be filled when Marvin Kaplan became a Board member in August. He was sworn in in August of 2017. And then it took another month before Bill Emanuel was sworn in in September 2017. So it’s certainly not a sure thing, even when the vacancies arise, that they will be immediately filled or in some cases there may be questions about whether they’ll be filled at all.

 

G. Roger King:  Good points. The process can get lengthy and perhaps quite political. Moving to slide eight, initially during this COVID-19 period that we all unfortunately find ourselves a part of, the Board did not conduct representation hearings and elections. Now, that changed shortly thereafter in April of this year, and the Board proceeded then to process petitions for election. And the big issue that has surrounded that resumption has been mail balloting.

 

The Board, through its regional offices, has been primarily conducting elections by way of mail balloting. Before that point in time or before our current COVID period, mail ballot elections, while available, were the exception. When an employer had a widely geographically dispersed employment group that was part of a voting unit, then mail ballots could be utilized. And there were other special circumstances. But as general rule, mail balloting was not the way the Agency proceeded.

 

And another thought in this whole discussion is the onsite election process, which was the norm, results in very high voter turnout for all stakeholders. Both management and union representatives could expect, as a general rule, a very high voter turnout. That has not been the case historically with mail balloting. There is a drop off, and it’s debatable how much. But that’s the key issue as we move forward through this difficult period in the NLRB’s processing of petitions for election. Phil, any comment? I know we’re going to return to the mail ballot issue with the recent Board case here in a few minutes.

 

Philip A. Miscimarra:  No, the Board has been doing a lot in terms of election procedures, as we will see. But with respect to COVID-19, the one thing that the Board has done is sort of focus more on mail ballot elections. And a case called Aspirus, they’re divergent views between the Board majority and Member McFerran in terms of how much mail ballot elections should be the norm, which is favored by Member McFerran. But the Board has never gone that far in its history.

 

G. Roger King:  Well, that’s correct. We’ll return to that point in a moment. Moving to slide nine -- and we’ll go through slides nine, 10, and 11 quickly. The issue here is election rules and procedures. Now, the Board during the Obama administration had changed the roadmap considerably on how election petitions filed by the unions were to be processed.

 

Essentially, they were to be processed per the rules that were adopted during that era, much more expeditiously. And questions of who was eligible to vote, who was a supervisor, for example, were to be reviewed on a post-election basis. There were a good number of other changes, including removing post-hearing briefs in representation proceedings.

 

The management community, by and large, was quite opposed to those and I think for good reason. Phil, when he was serving on the Board and his former colleague on the Board and partner at Morgan Lewis, Harry Johnson, filed extensive thoughtful dissents, at least from my perspective. And then we have the Trump Board that takes hold during the Trump administration, essentially reversing most of those rules that were adopted and going back to the prior way that elections were conducted. A bit of a hiatus period between filing a petition and the election, which makes, I think, great sense for all the stakeholders. Post-hearing briefs reinstated, the issue of who’s eligible to vote would be under the Trump Board concluded by and large before the election occurred.

 

The AFL-CIO opposed the Trump Board revision of the Obama Board election rules. Litigation ensued. As you see in slide 10, a U.S. District Court judge in the District of Columbia by and large agreed with the AFL-CIO’s lawsuit and enjoined many of the Trump Board re-election or election — strike the word “re” — election changes from going into place. And you can see on slide 11 the so-called substantive changes blocked by the district judge.

 

There were a number of procedural changes, however, that were not subject to the federation’s injunction request. And those procedural changes were ultimately not blocked. And they are on slide 12. And they are in effect as of today.

 

And as you’ll see on slide 13 and 14, there were other additional union election procedures that the current so-called Trump Board addressed -- the blocking charge procedure, which permits an entity, an individual, a union primarily from having an election occur by filing an unfair labor practice charge alleging some type of misconduct that would put the election on hold. The Trump Board has addressed that in saying essentially “No, we’re not going to proceed in that way. Either the ballots will be counted or impounded as we process the alleged violation of the law.”

 

And another important point there, the voluntary recognition bar, as some lawyers and some unions -- listeners of this teleforum know, have entered into voluntary recognition agreements without an election. Under the Trump Board approach, such agreements would be subject to essentially a voter referendum of unit employees in a 45-day period after such an agreement came into place. And there also was a construction industry regulation that was put in place that essentially requires greater proof on whether a union represents a majority of employees in a construction setting.

 

Those rules the Trump Board also have been challenged in an AFL-CIO lawsuit. They have been before a district court judge in the District of Columbia. And the litigation in this area has moved or is moving to the D.C. Court of Appeals. So I’m going to stop there. Phil, I know you’ve had a lot of involvement in election rules in the past. Comments, thoughts?

 

Philip A. Miscimarra:  Well, you know, Harry Johnson, as you mentioned, Roger, and I jointly dissented from the real sweeping changes that the Board made in representation election procedures back in December of 2014. And we called the rules at that time, just based on the scope of the changes, the Mount Everest of regulations. That was massive in scale and unforgiving in its effect. And the changes were sweeping. And then the more recent regulations or rules that a current Board has adopted have substantially cut back on many of those changes.

 

One point I’ll make in relations to the lawsuit that was pursued by the AFL-CIO against the Board’s most recent election rule changes, it’s true that the lawsuit -- two things. It’s true that the lawsuit caused certain of the changes to be rescinded but that holding of the court was based exclusively on a procedural issue regarding how the regulations were adopted. So the changes could still theoretically be made in the future -- the same changes. But the court held that the changes had to be preceded by issuance of a proposed rule because of the nature of the changes first and then consideration of comments and then a final rule.

 

The second aspect of the AFL-CIO lawsuit that has some importance is there’s a second basis upon which the AFL-CIO challenged the election rule changes. And the AFL-CIO contended that the rule did not reflection reasoned decision making. The rule on the whole did not constitute reasoned decision making for purposes of the Administrative Procedures Act. And the district court rejected that contention. So part of the lawsuit did rescind some of the changes that were implemented by the Board. But more generally, part of the lawsuit actually upheld the Board’s rulemaking authority and held that what the Board did was within the Board’s rulemaking power.

 

G. Roger King:  Excellent points, Phil. In fact, there’s a long history of prior boards in both Democrat and Republican administrations adopting procedural rules similar to what were adopted by the Trump Board without going through the Administrative Procedure Act requirements of posting and comment. So we shall see. The D.C. Circuit Court of Appeals will no doubt rule at some point next year on these continuing controversies about election rules.

 

Let’s go to slide 16, speech in the workplace. The misunderstanding that some still have is that the First Amendment free speech rights are applicable in the workplace. And that’s, as a general rule, just not correct as people on this call are well aware, I’m sure.

 

Private sector speech, by and large, is not covered by the First Amendment. It requires some type of government action -- some government entity intervening and issuing a rule or a regulation or a law being adopted by a governmental entity that interferes with speech. But that said, the National Labor Relations Act probably is the closest thing to regulating or at least reviewing speech in the private sector workplace. And that’s why this discussion at slides 15 and 16 are important.

 

While it’s true that employees owe a duty of loyalty to their employer — as general employees can’t trash, for example, the services, goods, and operations of their employers — employees do have a wide range, at least historically, under the NLRA of rights to file complaints, to file grievances, and to act in a concerted manner, two or more employees, objecting to employer actions that relate to terms and conditions of employment. But we’ve had this tension between Title VII, which requires employers to have a workplace free of hostility, free of racial insensitive and discriminatory speech and activity, with the NLRA and NLRB essentially saying, “Well, there’s such a wide spectrum of rights here that we’re generally going to allow a great deal of speech, including offensive speech in the workplace, without any ability of an employer to discipline employees.” And while some of that was just profoundingly employee expression, it went well beyond that. There were really, in particularly strike situations, some very racially offensive comments that were made by strikers, etc.

 

So we had this tension between Title VII and the NLRA. And the Trump Board really got to this issue in the General Motors case and addressed speech in the workplace. And just to cut through this -- and Phil, I’m sure, will comment here. Essentially what the Board has said is that employers have a right to regulate offensive speech, hostile work environment speech, racially insensitive speech in the workplace, and engage in disciplinary actions when appropriate if, in fact, the employer’s motivation was based not on trying to penalize employees for speech per se but because they have a duty to have a workplace free of such activity. It’s what’s known really, essentially, as a neutral approach to this issue.

 

And union support and concerted activity, while it may have occurred, was not the ultimate motivating reason or rationale for the employer disciplinary action. The General Motors case has far reaching, I think, consequences in the future. And it’s going to be interesting to see how it’s applied. Phil, your thoughts?

 

Philip A. Miscimarra:  I agree with that assessment. And almost everything that the NLRB does tends to be controversial to somebody. But throughout my tenure on the Board, the Agency managed to create bipartisan support at the EEOC for one proposition, which is all of the EEOC commissioners tended to be very critical of the NLRB in regard to protection the NLRB gave to a lot of sexually or racially offensive conduct in the workplace.

 

Another issue apart from workplace civility standards that generated a lot of criticism among the EEOC commissioners was the Board’s limitations on the ability of employers to preserve confidentiality during workplace investigations. And part of the NLRB law changed in the Boeing case dealing with workplace civility rules that was decided in December 2017. More recently, the Board has held the requesting confidentiality in workplace investigations is not presumptively unlawful.

 

And now in the General Motors case, it completes the trifecta where the NLRB has gone a significant way in the direction of creating convergence between EEO law and NLRB law with respect to offensive conduct or offensive behavior in the workplace. And I think for all of the employers that struggle to just have a legally compliant workplace this is a very significant change for the better. It remains to be seen how much of that would stick if the composition of the Board changes prospectively.

 

G. Roger King:  Again, excellent points. I think the GM case is the most significant case probably that the Trump Board has issued. Now, there are other important decisions, but how a new Board -- a so-called Biden Board will accept, if at all, the rationale of GM will be interesting to see. I note in passing the EEOC filed an amicus brief in the General Motors case supporting the ultimate outcome that the Trump Board reached. So hopefully the two statutes, Title VII and NLRA, will continue to be better harmonized in the future. We shall see.

 

Let’s go to slide 18. Of course, it just is not speech in the workplace as we now have more of us working remotely, as we have individuals and employees posting continually on various websites and social media their thoughts and ideas about the workplace. The same general principles apply whether those are private posts or public posts that employees, two or more coming together, have a right to engage in criticism and comment about terms and conditions from employment. And it’s something we just continually need to stress to our employers in the private sector is they need to be careful before they engage in any discipline of employees for protected speech on social media.

 

Now, that said, we think the General Motors case principles certainly, of course, would apply. So you don’t have a right to engage in, hopefully, racially insensitive comments in your so-called private posts online nor create a hostile work environment even though you’re not physically in the workplace. But that’s an important consideration, and really, I think, Phil, a segue into potential walkouts and protests given the social justice movements in this country.

 

Are those activities protected? If, for example, I leave my place of employment — I’m on slide 19 by the way — to protest a police brutality situation, is that protected if two or more employees engage in that type of activity? We don’t have really good or any substantive NLRB case law on this question. We do have two so-called advisory opinions from the Office of General Counsel of the Board.

 

One goes back to 2017, as noted on slide 19. And there we had the immigration -- the Day Without Immigrants protest and some employees not showing up for work -- didn’t work to go to rallies and protests. And the Associate General Counsel of the Board at the time found that those types of walkouts, as a general rule, should be protected because there was a sufficient nexus or connection between the protest activity of employees and the activity they were supporting. We had immigration raids, as you may recall, by INS, etc., at the time.

 

So we fast-forward to our social justice concerns today. And I’m on slide 20. And we had a situation develop where a union employee who was a member, I believe, of the Maryland General Assembly, a delegate, presented testimony on an issue regarding this whole area of advocacy in the workplace and police brutality and related issues. And the employee of the union was disciplined and, I think, subsequently terminated.

 

So the question was was that protected activity, that testimony? And the current Office of General Counsel to the Board found, no, there was not sufficient nexus between the political advocacy of the employee in question and terms and conditions of employment. So this is an area to pay attention to in our current climate. Phil, comments, thoughts in this area? Phil, do we still have you?

 

Philip A. Miscimarra:  I do my best work while on mute. There’s a helicopter going over head, so I went on mute. But the point I was making, Roger, is that there’s always a question about the dividing line between what the National Labor Relations Act regulates, namely wages, hours, and terms and conditions of employment and broader social concerns that may be very important. But they’re not fundamentally about what federal labor laws address. But there are a lot of fine lines that are drawn in these cases. And I expect that some of the uncertainty that exists in these areas is going to continue.

 

G. Roger King:  No doubt. And this could be other types of political expression, etc., but I think as you’ll see from looking at our slides there really has to be a direct nexus between your so-called protected activity and terms and conditions of employment. And on that note, on slide 21, unions, I think, by and large, have done a good job of tying terms and conditions of employment issues — “Fight for $15,” safety in the workplace issues — to social justice protests. And to the extent they can tie those together, if you will, or wrap the employee activity around both the protest of terms and conditions of employment and social justice issues, there’s a much stronger argument for protected activity.

 

Moving to slide 22, of course, this whole discussion also seeps into employee dress code. Do I have a right as an employer to discipline an employee showing up for work with a controversial statement on a mask or wearing some type of bling or t-shirts or other clothing that has a so-called controversial message? Well, here again -- and we could spend a couple hours on a separate teleforum talking about the case law that has developed in this area. But I think, Phil, really the takeaway is that the employer has to show some interference with its work activities by the wearing of such paraphernalia or controversial items before it can take disciplinary action.

 

Now, for employees that are customer facing, face to face, and client facing positions, the employer has a better argument. And the D.C. Circuit Court of Appeals has some interesting helpful decisions here supporting the employer’s position if it’s based on a rational approach of protecting its reputation. But the courts are somewhat divided. So be careful on this area if you, as an employer, are going to be engaging in discipline. Phil, a quick comment on this point?

 

Philip A. Miscimarra:  No, I think you hit it, Roger. Again, it’s an important area, but I think you’ve identified the salient points.

 

G. Roger King:  Well, let’s go to slide 23. And we’re going to quickly go through some recent decisions in addition to the General Motors case that we think would be of interest to our listeners today. The Cott Beverages case on slide 23, the essence of this opinion is the Board applied, as Phil noted, its Boeing standard on how it’s going to look at employer policies in the workplace and found that the employer had a right to adopt a policy restricting the use of personal cellphones in certain work areas for nonsupervisory employees.

 

And it seems to me this just makes sense. I mean, the workplace needs to be productive and safe. And the employer should have rights to regulate that, including prohibition on cellphones. But take a look at that case. It’s Cott Beverages. The law had not been particularly clear on employer rights and its policies regarding cellphone use prior to that case.

 

The next case, slide 24, the Nicholson Terminal case, here the employer had implemented rules barring employees from taking on secondary work -- moonlighting, if you will -- that could have a detrimental impact upon the primary employer and also had a policy -- this employer had a policy of forbidding employees from, quote, calling, participating in, or encouraging actions in illegal labor activities such as sympathy strikes. And the NLRB, again applying its Boeing standard, upheld these company policies. I think interesting -- particularly moonlighting restriction caught my attention, Phil. I wasn’t so surprised about the restriction and prohibition on illegal strikes. Any quick comments on that case?

 

Philip A. Miscimarra:  No, I don’t. And I think that your assessment is right on, Roger.

 

G. Roger King:  Thank you. Let’s move to the Union Tank Car Company case that’s on slide 25. Here, a company had a policy that forbid workers from making oral or written statements which, quote, were intended to injure the reputation of the company or its management personnel with customers or employees, close quote. And Chairman Ring and Member Kaplan said that this went too far, unjustly blocked the workers’ right for voicing complaints. And it’s interesting.

 

Member Emanuel split somewhat with his comments here. He says, “Well, the non-disparagement rule really has some support,” he thought, “on a rational basis, and engaging in that type of intentional conduct really was not protected by the Act.” So this is an example, Phil, of even the Trump Board saying, “Look. Employers, you can’t go too far in suppressing employees’ speech and rights in the workplace.” Thoughts or comments?

 

Philip A. Miscimarra:  Well, that’s the tension that we have under the National Labor Relations Act is, on the one hand, employees have a duty of loyalty. And to some degree when people come to work the expectation is they’re going to do something that advances the ball in terms of the underlying objective of the business in relation to production. On the other hand, there’s a lot of history under the National Labor Relations Act that involves dissent in the workplace. And if you go back to what most people picture in the 1950s or the 1960s about significant labor disputes, there’s a lot of conduct that arises from collective bargaining and labor negotiations and strikes and picketing that looks like disloyalty. And it continues to be an issue that the Board struggles with as well as employers and unions and employees and their advocates.

 

G. Roger King:  Yeah. I certainly concur. That’s a challenging area of the law. Moving to slide 26, the Verizon Wireless case, here the Board upheld the employer’s policy, again, using its Boeing test, for the employer to engage in search of employees on company property to prohibit theft and other illegal substances from being on the workplace. And in this decision the Board also said that the employer here, Verizon, could prohibit employees from improperly using company computers and other electronic devices. And it seems to me a commonsense decision.

 

Moving to slide 27, the Shamrock Foods case, here the Board analyzed the employer’s role in discouraging workers from linking the employers external or internal website to personal blogs and said the company had a right to regulate that area. Again, I think an important decision but a common sense one. And that’s the law of the land at the moment. That takes us to the next slide, and that is the retail slide that you referenced -- or the case, excuse me, Phil, about mail ballot elections. Do you want to comment again briefly on that issue?

 

Philip A. Miscimarra:  Yeah. And the name of the case is -- and by the way, on slide 28, is Roger’s --

 

G. Roger King:  Oh, I’m sorry.

 

Philip A. Miscimarra:  -- Apogee Retail, which is the case that deals with employer requests for confidentiality during workplace investigations, which was an important case. And it actually overturned a 2015 case in which I had dissented, Banner Estrella.

 

G. Roger King:  A very important case.

 

Philip A. Miscimarra:  But the mail ballot election case that has gotten a lot of attention showing on slide 29 is Aspirus Keweenaw. And in that case, the Board reversed the decision of the regional director to conduct a union election by mail balloting. But in the course of deciding the case, the Board majority articulated a multi-factor test that should govern whether mail balloting elections should occur instead of a manual election and also identifying considerations during the COVID-19 pandemic that would come into play.

 

And there’s a separate opinion by Board Member McFerran indicating agreement in part with the thrust of where the Board majority has gone in those cases. But she strongly suggests that the Board should re-evaluate the possibility of making mail ballot elections the norm. And that’s something that the Board has never done at this point, and it’s something currently that the Board majority has not expressed agreement with. But that’s something that may receive more attention by the Board prospectively, especially if the composition of the Board changes under a Biden administration.

 

G. Roger King:  And thank you, Phil, and thanks for correcting the record. Phil’s right. That case is at slides 29 and 30. Moving to slide 31, the Davidson Hotel case, this is a case out of the D.C. Circuit, very recent. The takeaway here is that the D.C. Circuit overturned a Board decision certifying separate units in a hotel setting. But the important thing to me here, Phil, is that the D.C. Circuit said the Board has to do a better job before it could certify so-called micro or small units in a workplace.

 

So we’ll see how the Board deals with the remand from the D.C. Circuit. But unit composition is often a very important part, obviously, of the voting process, if not dispositive of the outcome. Moving to slide 32, the AFM case, no leafleting on employer property. Phil, you want to comment briefly on that case? I think it raises some real issues.

 

Philip A. Miscimarra:  And that particular case, again, was a D.C. Circuit case and not -- the Board had held that employers could bar non-employees from leafleting on their premises even if the employees worked for an onsite contractor. And the union ended up appealing to the D.C. Circuit. And the union argued that the Board misread applicable law by placing employee rights -- making them subordinate to those of non-employee union organizers.

 

And the Board has argued that its two-prong test is appropriate when you’re talking about having employee contractors. And the thrust of the Board’s decision has been that employees of a contractor in terms of private property access is not the same as the rights that the employer’s own employees have when it comes to property access. And this is an area that the Board in three different cases in the last two years has specifically addressed, three different cases dealing with private property rights. And the Board has tended to be more restrictive in terms of intruding on the right of employers to control access to their own property.

 

G. Roger King:  Yeah. An important case, Phil, because we have more and more instances where the employee or contractor, depending on your definition, has access on an episodic periodic basis to an employer’s property to performer services, etc. In this case, I believe it was a symphonic orchestra situation. And the symphonic orchestra on occasion would practice and perform on this site. But the question is were they there on a enough of a regular basis to have a rights to protest on employer’s property.

 

You can think of many other analogous situations where there are episodic instances of employees coming on an employer property. So stay tuned in that area. I think that’s an area we’re going to see a lot more activity on in the future. I want to make sure we -- go ahead.

 

Philip A. Miscimarra:  I should just note that the appellant in that case is the American Federation of Musicians. And I was myself represented for many years by Local 6471 of the American Federation of Musicians in my prior career as a musical director, show pianist, and vocal coach and arranger. But just had to get that plug in for the AFM, although I’ve not been a member for many years.

 

G. Roger King:  Well, but some would argue Phil’s musical talents are equal to his legal talents, which are substantial. And I can personally attest to that. We don’t have time to get into our musical experiences this morning but perhaps another time.

 

Let’s conclude because we need to talk about rule making, at least in part. So the NLRB, looking at slide 34, has asked for public input on employee personal privacy information. This, again, comes out of the Obama era election rules where the Board held that a petitioning union was entitled to the personal cellphone and email addresses -- personal email addresses of employees in the voting unit prior to the election.

 

The Board has asked for comment on that. Very controversial area. The HR Policy Association has commented in this area. We think this is a substantial overreach. We think there ought to be at least opt in or opt out rights. So the public comment period ended in October. So that issue is before the Board.

 

We also have, moving to slide 35, an invitation for amicus briefs on the Board’s contract bar doctrine. This doctrine essential prohibits any type of representational election to dislodge the incumbent union during the term of the contract. So there are questions that arise as to when the contract starts and when it ends and what kind of rights employees have to change unions, to decertify unions and the like -- a very interesting area. So that issue of the case, as you see at slide 35, the Mountaire Farms case, is pending before the Board.

 

And finally on public comment on slide 36, Phil, Scabby the Rat is back in the news, inflatable objects that have appeared at various workplace to send a union message of what it believes to be improper conduct by the employer. And the rat, or other inflatable objects, then appear. And the Board has asked for comments on whether that activity is protected in balancing property rights of the employer and rights of speech if you will -- speech under the NLRA of unions and employees. And amicus briefs are due in December for that public comment period. We really need to have a separate teleforum on rule making. But Phil, let me just quickly had over the forum to you on rule making.

 

Philip A. Miscimarra:  I’ll just make a couple of quick points, and I’ll tee up the question here, which is how could it be that for the past 85 years the NLRB has applied a statute which every single day vested the Agency with rulemaking authority and inexplicably the NLRB has almost never engaged in rulemaking? And that is almost never until two years ago when the Board started to do a lot of rulemaking. So the Board for decades was criticized. A friend and labor law professor, Sam Estreicher, who Roger and I know and many of you are familiar with, used to talk about the NLRB’s reliance on case adjudication as a pathology.

 

But anyway, it turns out -- a couple of points that I’ll make about the sudden uptick in NLRB rulemaking -- number one, my own personal history with NLRB rulemaking has involved two different contexts. And back in 2011, the NLRB adopted two different rules, one dealing with employer notice posting and new notice posting requirement and a major rewrite of representational election procedures. And I represented clients in the three court cases that ultimately invalidated both sets of rules.

 

And then, I ended up having the privilege of being appointed by President Obama to be a member of the NLRB. And when I went through the Senate confirmation process, the Senators apparently were -- many of them were familiar with my participation in these cases that had overturned the Board’s two 2011 election rule. And I was asked repeatedly if I supported the Board’s rulemaking authority. And I consistently stated that I did.

 

The statute authorizes the Board to engage in rulemaking. But it was relevant what the rule contained and whether the Board complied with procedural requirements set forth in the Administrative Procedures Act, among other things. So I ended up being on the Board. I participated in the 2014 election rule. And as I mentioned previously, former member Harry Johnson and I both dissented from that rule.

 

But anyway, it’s ironic that many of the people who were so supportive of NLRB rulemaking, real advocates for NLRB rulemaking 10 years ago are among the people who now are so critical of the Board’s rulemaking that has taken place over the past two years. But it’s somewhat understandable that one’s view about rulemaking may vary depending on what a rule actually accomplishes. And I’ll note that there’s a paper that’s posted on The Federalist website for this program, along with some presentation slides, that cover a lot more ground regarding the pros and cons and tradeoffs and advantages and disadvantages associated with rulemaking.

 

But a couple of things are clear. One, the NLRB does have rulemaking authority. Two, it’s up to the NLRB to decide whether certain things are best addressed in the course of deciding cases or whether the same things should be addressed by adopting a regulation or a series of regulations. But for sure, the NLRB in the past two years has done more rulemaking, both proposed rules and final rules which are enumerated in the paper that’s been posted -- some of which Roger has also talked about. The Board has done more rulemaking in past two years than at any other time in the Agency’s history.

 

And then the last point that I’ll make involves the question of whether rulemaking takes longer than case adjudication or is rulemaking more stable than case adjudication. And as indicated in the paper that’s been posted, I took all of the rules that the Board has adopted in its 85 year history and evaluated the amount of time that the rule was actually pending at the level of the NLRB. And then I took a look at six prominent cases that were decided during my four and a half years on the NLRB.

 

These are cases that most people on this particular teleforum would recognize. And I evaluated the amount of time that those cases were pending at the NLRB. And as it turns out, depending on some of the assumptions you make, rulemaking is either quicker than the adjudication of these prominent cases on average. Or if you allow for seven and a half months for the Board to issue a proposed rule, it’s really striking that rulemaking tends to be almost exactly the same. The Board’s actual rulemaking in terms of amount of time associated with it has tended to be almost exactly the same as what was associated with the Board’s promulgation or adjudication of the six prominent cases that are a part of the sample that I evaluated.

 

So the Board can do either. And I’ll just finish by saying I think that the genie’s out of the bottle. And the Board’s more significant focus on rulemaking, which has characterized the last two years, probably will continue regardless of who happens to sit on the NLRB.

 

G. Roger King:  Yeah. Excellent points, Phil. I’m hoping more predictability, to quote Professor Estreicher again, less policy oscillation. We really -- I think all stakeholders really would benefit by more stability from the Board. And rulemaking at least has the potential to do that. I wish we had more time on rulemaking, and perhaps we need to do a separate teleforum, Micah, on rulemaking. And Phil’s paper is excellent. His slides are excellent. I commend them to your attention. Micah, we’re going to turn the microphone over to you.

 

Micah Wallen:  Absolutely. Let’s go ahead and see if we have an audience question. I’m not seeing any question. Oh, there’s one question. We’ll go ahead and move to that first caller.

 

Caller 1:  Thanks a lot for the informative program. I have one question which is that I’ve read some press accounts that some union lawyers are advocating that future President Biden immediately fire General Counsel Robb. And I’m wondering what your thoughts are on that and whether that’s possible. I note that the statute gives some reasons why board members can be discharged, but it says nothing about the General Counsel being discharged. And I’m wondering what your thoughts are about the legality of such a move and the advisability of such a move. Thank you.

 

G. Roger King:  Thanks for the question. A, I think it’s questionable whether there’s statutory authority to do so. Although, there’s some recent case law on this issue. Two, I don’t know of any factual support for such a draconian drastic move. General Counsel Robb has done, from at least my perspective, an excellent job. I think it must be really stressed that a lot of this so-called noise on the issue of General Robb really relates back to contentious bargaining between the Agency and its in-house union.

 

And finally, a very poor policy decision if that would be pursued by the incoming administration. I think it would open up deep wounds within the business community and with the Senate leadership. I would think Leader McConnell would really react very negatively to any such politically driven move. So in summary, very poorly thought out. Perhaps no authority even to engage in such drastic action. Phil?

 

Philip A. Miscimarra:  The thing that I would also add is that the NLRB members and the General Counsel under the statute that National Labor Relations Act have prescribed terms. Those terms have universally been respected on a bipartisan basis over many, many, many decades. And when it comes to the NLRB, one of the things that parties and advocates come back to over and over again is the importance of stability. And it would be very disruptive to the Agency and I think very disruptive for all parties, regardless of what side they might be on, to have extraordinary unusual changes made either when it comes to NLRB members and the composition of the Agency or the NLRB’s General Counsel.

 

G. Roger King:  Totally concur. Micah, any other questions?

 

Micah Wallen:  No other questions in the queue. I’ll offer you both a chance for any closing remarks or anything you’d like to add before we end today.

 

G. Roger King:  No, I will just say, again, thank you for, Micah, including us. There were a number of subjects we obviously had to gloss over. The rulemaking issue, I think, deserves a separate teleforum. Phil Miscimarra’s paper is just excellent. Again, I commend it to our audience. And we look forward to future teleforums, including one on the PRO Act in December. Phil?

 

Philip A. Miscimarra:  And I agree. There’s a lot going on. The NLRB will continue to be a focus of attention for many people and stay tuned.

 

Micah Wallen:  Absolutely. And on behalf of The Federalist Society, I’d like to thank both of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.