A Conversation with Harry Johnson III
NLRB UPDATE
Cornell ILR School Presentation
February 27, 2015
Panelists:
Member Harry Johnson III
Marshall Babson
Karen P. Fernbach
Gabrielle Semel
By Karen P. Fernbach,
Regional Director, Region 2
1
MikLin Enterprises, Inc., d/b/a Jimmy
John’s, 361 NLRB No 27 (8/21/14)
Issue:
Did a poster and press release about the
employer’s sick leave policy lose the
protection of the Act because they were
so “disloyal, reckless or maliciously
untrue” under Jefferson Standard and
MasTec?

NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346
U.S. 464 (1953) and MasTec Advanced Technologies, 357 NLRB
No. 17 (2011).
2
MikLin Enterprises, Inc., d/b/a Jimmy
John’s, 361 NLRB No 27 (8/21/14).
Facts:
 Employer did not provide paid sick leave.
 Union developed posters that displayed a
sandwich made by healthy worker and
sick worker. The posters asked could you
tell the difference and stated, “We hope
your immune system is ready because you
are about to take the sandwich test . . .”
 There was a press release that included
the poster
3
4
MikLin Enterprises, Inc., d/b/a Jimmy
John’s, 361 NLRB No 27 (8/21/14)
Majority of Board (Pearce and Schiffer)
found the press release and posters did
not lose the protection of the Act.
1. Communications were related to a labor
dispute
2. Communications were not reckless or
maliciously untrue
3. Communications were not “so disloyal”
to lose the protections of the Act
5
MikLin Enterprises, Inc., d/b/a Jimmy
John’s, 361 NLRB No 27 (8/21/14)
Board found that discharging 6 employees
and disciplining 3 others for their
involvement in the Union’s Sick Days
poster campaign violated Section 8(a(3).
 Member Johnson dissented and found
that the Union’s “contaminated sandwich”
poster campaign “purposefully disparaged
MikLin Enterprises’ signature product in a
manner that was out of all proportion to
the alleged sick leave dispute.” Id. at 10

6
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).
Facebook Postings:
Board (Miscimarra, Hirozawa and Schiffer)
found that the Employer violated Section
8(a)(1) by discharging two employees for
their participation in a Facebook
discussion involving claims that employees
unexpectedly owed additional state
income taxes because of the Employer’s
withholding mistakes.
7
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).
Facts:
Former employee posted: “Maybe someone
should do the owners of Triple Play a
favor and buy it from them. They can’t
even do tax withholding correctly!!! Now
I OWE money . . .WTF!!!”
A current employee liked this posting.
Another current employee posted: “ I owe
too. Such an asshole.”
8
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).
The Employer discharges the one
employee for her posting stating that she
was not loyal enough to be working for
the Employer.
 The Employer also questions the
employee who had liked the initial posting
and fired him because he liked what the
Employer considered to be disparaging
and defamatory comments.

9
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).



The ALJ found, and the Respondent did not
contest, that the two employees were
engaged in protected concerted activity
because the discussion concerned workplace
complaints about tax liabilities.
The issue was whether the discussion
exceeded the protections of the Act.
Board initially concludes that the Atlantic
Steel framework does not apply because it
is tailored to workplace confrontations.
10
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).

The Board applied the Jefferson
Standard and Linn tests: Did the
employees’ conduct amount to disloyal
disparagement of their employer so as to
fall outside the protection of the Act or
were the statements uttered “with
knowledge of its falsity, or with reckless
disregard of whether it was true or false.”
11
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).
Board finds that comments at issue did
not even mention, much less disparage
the employer’s products or services.
 The Board also found that the comments
were not defamatory.
 The Board then found that the Employer
violated Section 8(a) (l) by discharging the
two employees because of their
protected concerted activity.

12
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).

Two members of the Board(Hirozawa,
Schiffer) also found that the Internet
Blogging Policy was unlawful:
◦ “when internet blogging, chat room discussions,
e-mail, text messages, or other forms of
communication extend to employees revealing
confidential and proprietary information about
the Company, or engage in inappropriate
discussions about the company, management
and/or coworkers, the employee may be violating
the law and is subject to disciplinary action, up to
and including termination of employment. … In
the event state or federal law precludes this
policy, then it is of no force and effect.”
13
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).
 Majority conclude that rule was
overbroad under Lutheran Heritage
because employees would reasonably
interpret the rule as proscribing
discussion of terms and conditions of
employment deemed “inappropriate” by
the Employer. Majority notes that
unlawful actions in this case indicated to
employees that the savings clause did not
protect them.
14
Three D, LLC d/b/a Triple Play Sports Bar and
Grille, 361 NLRB No. 31(8/22/14).

Member Miscimarra found policy to be
lawful: “Nobody can seriously disagree that
the two listed infractions—disclosing
‘confidential and proprietary information’
and ‘inappropriate discussions’ ‘may’ violate
one or more laws ‘and’ be proper grounds
for discipline.” Id at 11. He accuses the
majority of unfairly combining prongs one
and three of Lutheran Heritage. He would
also give effect to the savings language.
15
Pacific Lutheran University, 361 NLRB
No. 157 (12/16/14).

3-2 decision by Board asserting jurisdiction
over contingent faculty.
Catholic Bishop Issue: If a college or
university argues that the Board cannot
assert jurisdiction over a unit of faculty
members because the university is a
religious one, the university must first show,
as a threshold requirement, that First
Amendment concerns are implicated by
showing it holds itself out as providing a
religious educational environment.
16
Pacific Lutheran University, 361
NLRB No. 157 (12/16/14).
Once the threshold requirement is met, the
university must show that it holds out the
petitioned for contingent faculty members
themselves as performing a specific role in
creating or maintaining the college’s or
university’s religious educational environment, as
demonstrated by representations to current or
potential students and faculty members, and the
community at large.
 Majority finds the school meets threshold
requirement but faculty aren’t held out as part of
religious educational environment.

17
Pacific Lutheran University, 361
NLRB No. 157 (12/16/14).

Yeshiva Issue: Where a party asserts that
university faculty are managerial
employees, the Board will examine the
faculty's participation in the following
areas of decisionmaking: academic
program, enrollment management,
finances, academic policy and personnel
policies and decision. The first three
areas are considered to be primary and
are given greater weight.
18
Pacific Lutheran University, 361
NLRB No. 157 (12/16/14).

The Board will then determine, in the
context of the university’s decision
making structure and the nature of the
faculty’s employment relationship with the
university, whether faculty actually control
or make effective recommendations over
those areas. If they do, the Board will find
that they are managerial employees and,
therefore, excluded from the Act’s
protections.
19
Pacific Lutheran University, 361 NLRB
No. 157 (12/16/14)
Dissents by Members Johnson and Miscimarra:
 Member Johnson dissents finding Board’s new standard
that establishes a balancing test between First
Amendment and NLRA raises constitutional avoidance
concerns under Catholic Bishop.
 Great Falls Test (D.C. Cir. 2002) is the appropriate
standard to apply. Under this test, the institution is
exempt if it (a)holds itself out to students, faculty,
community as a religious entity.
 (b) Is a non-profit institution
 (c) Is affiliated, owned, operated, or controlled by a
religious organization, or with entity where membership
is determined in part by religious identity
20
Pacific Lutheran University, 361 NLRB
No. 157 (12/16/14)
Member Johnson concludes that PLU is a
religious entity that holds itself out to
students, faculty and community as
providing a religious educational
environment, is a non-profit, and is
affiliated with the Evangelical Lutheran
Church in America
 Member Miscimarra concurs with
Johnson in applying the D.C. Circuit Great
Falls standard

21
Pacific Lutheran University, 361 NLRB No. 157
(12/16/14) --Yeshiva Issue



Member Johnson also prefers a more flexible
test than majority’s evaluation of managerial
status into primary or secondary criteria
In particular Member Johnson would
consider “academic policy” and “personnel
policy and decisions” as possible primary
indicia depending on the importance in a
particular university and to their consumers.
Member Miscimarra agrees generally with
majority distinction between
primary/secondary criteria but also argues
for greater flexibility in applying the criteria.
22
Purple Communications, Inc., 361
NLRB No. 126 (12/11/14).

Relying on a Republic Aviation analysis, the
majority of the Board (Pearce, Hirozawa,
Schiffer) will presume that employees who
have rightful access to their employer’s email
system in the course of their work have the
right to use the email system to engage in
Section 7-protected communications on
nonworking time. An employer may rebut
the presumption by demonstrating special
circumstances necessary to maintain
production or discipline that justify
restricting its employees rights.
23
Purple Communications, Inc., 361
NLRB No. 126 (12/11/14).

Because limitations on employee
communication should be no more
restrictive than necessary to protect the
employer’s interests, the Board anticipated
that it will be a rare case where the special
circumstances will justify a total ban on nonwork email use by employees. However, an
employer may apply uniform and consistently
enforced controls over their email system to
the extent necessary to maintain production
and discipline.
24
Purple Communications, Inc., 361
NLRB No. 126 (12/11/14).
The decision addresses only email systems and
not any other electronic communications.
 The decision encompasses email use by
employees only and does not grant nonemployees any rights to access the employer’s
emails system.
 The decision does not require an employer to
grant employees access to its email system where
it has not chosen to do so.
 The presumption in this decision is expressly
limited to non-working time.

25
Purple Communications, 361 NLRB
No. 126 (12/11/14)




Member Johnson dissented arguing that Republic
Aviation is not the appropriate framework to
permit employee use of e-mail system.
Use of e-mail to communicate with co-workers is
not same as the water cooler.
New rule impermissibly undermines right to own
and operate an e-mail network for business
purposes.
Employees have other ways to communicate with
social networking e-mail sites, smart phones, text
messaging.
26
Purple Communications, Inc. 361 NLRB No.
126 (12/11/14)
Member Miscimarra dissented, arguing
that majority standard fails to
appropriately balance NLRA-Protected
Rights and Employer Property Rights.
 Employees have access to electronic
communications through Facebook, text
messaging, twitter and other social media
services

27
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14).
A majority of the Board (Pearce, Hirozawa,
Schiffer) modified the Boards’ deferral
standard for deferral to arbitration awards.
 If the arbitration procedures are fair and
regular and if the parties agreed to be
bound, the Board will defer to an arbitral
decision if the party urging deferral shows
that:
 (1) the arbitrator was explicitly authorized
to decide the unfair labor practice issue;

28
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14).



(2) the arbitrator was presented with and
considered the statutory issue, or was
prevented from doing so by the party
opposing deferral; and
(3) Board law reasonably permits the award.
Note: As to item (1), the proponent for
deferral can demonstrate that the specific
statutory right at issue was incorporated
into the collective-bargaining agreement or
that the parties explicitly authorized the
arbitrator to decide the statutory issue.
29
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14).

As to item (2), the Board stated, “We
shall find that the arbitrator considered
the statutory issue when the arbitrator
has identified that issue and at least
generally explained why he or she finds
that the facts presented either do or do
not support the unfair labor practice
allegation.” Id. at 7.
30
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14).

As to item (3), the Board stated: that the
arbitrator’s decision must constitute a
reasonable application of the statutory
principles that would govern the Board’s
decision if these facts were presented to
the Board. However, the arbitrator need
not reach the same result as the Board. It
must only be a result that a decision
maker reasonably applying the Act would
make.
31
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14).
The Board further concluded that it was
appropriate to apply the same deferral principles
to prearbitral settlement agreements.
 The Board decided to apply the new standard
prospectively only. The Board noted: “[W]here
current contracts do not authorize arbitrators to
decide unfair labor practice issues, we will not
apply the new standards until those contracts
have expired, or the parties have agreed to
present particular statutory issues to the
arbitrator.” Id. at 14.

32
Babcock & Wilcox Construction
Co., 361 NLRB No. 132 (12/15/14)
Member Miscimarra in dissent argues that new
deferral policy prohibited by 10(c) which
prevents reinstatement and backpay if just cause
for discharge even if Board determines a
statutory violation overrides employer’s just
cause defense.
 (Member Johnson will cover his dissent in toto.)

33
General Counsel Guidance Memo
on Babcock & Wilcox
GC Memorandum 15-02, “Guideline
Memorandum Concerning Deferral to
Arbitral Awards, the Arbitral Process, and
Grievance Settlements in Section 8(a)(1)
and (3) cases, dated February 10, 2015.
 Provides guideline memo to the Regions
and the parties.
 Memo is on www.nlrb.gov
 Link to memo is provided on Labor and
Employment Law website.

34
HIJ Points (MikLin)






Agreement on most of the case
Core disagreement: What does “reckless disregard” or
“disloyalty” mean?
Can workers say “shoot, we can’t even call in sick” if
they can call in sick (with a replacement for the shift)?
Can the poster tell consumers their immune system
is “about to be tested” without it being construed as
an allegation of contamination?
See also, press release: “As flu season continues, the
sandwichmakers … are sick and tired of putting their
health and the health of their customers at risk.”
Can the poster be created with no evidence of
foreknowledge of MikLin’s health record?
35
HIJ Points (MikLin)

Can the poster fail even the most basic
notions of statistical proof or empirical
analysis and still be “true enough” or “loyal”?
Two cases of foodborne disease in 10 years
(latest was 4 years before poster) and 6 million
sandwiches.
ALJ: “no direct correlation established between these
incidents and the absence of sick leave. “
ALJ: “one could regard the risk of becoming ill by
eating at one of Respondent’s shops to be
infinitesimal.”
 Proportionality:
Enmeshing every other
franchisee and JJ’s itself.
36
HIJ Points (Triple Play)

Statements in a labor dispute that are
reasonably tied into some element of truth
are not “reckless disregard” and don’t lose
their protection.
 No question that Employer caused the employees
to come up short in their tax payments


Statements that are mere name-calling (i.e.
opinion) are not “disloyalty”
Note that Board did acknowledge employer
interest versus disparagement .
37
HIJ Points (Purple: General)
Atypical employer email policy.
 The majority could have gone many different
ways without overturning so much. E.g.,
mixed use distribution case rationale.
 Proper focus: “adequate avenues for
effective employee Sec.7 communication.”
 No parallel basis for importing physical
space Republic Aviation presumption here.
 Minimizes alternative technologies.
 Effectively ignores First Amendment.

38
HIJ Points (Purple: Water Cooler or
Something Else?)
39
HIJ Points (Purple: Alternatives)
40
41
HIJ Points (PLU: First Amendment)
Big picture: The Board’s silo approach
can run afoul of the Constitution and
other statutes.
 My limited praise for “specifically
religious” test: Ostensibly doesn’t test
depth of belief…
 …but a faculty role is not “specifically
religious,” unless it is either pure
proselytization or unique to the religion.
Really?
 Decision actually fairly easy to comply
with, if religious schools exercise some
forethought.

42
HIJ Points (PLU: Managerial)


5-0 agreement on result; agreement on
general approach and most of factors
Difference lies in steepness of burden of
proof re: effective recommendation
◦ Majority (p. 18): “To be ‘effective,’ recommendations must almost
always be followed by the administration….”; “Further, faculty
recommendations are ‘effective’ if they routinely become
operative without independent review by the administration.”

Burden is too steep where exemption
defeated by (a) failure to “almost always
follow” faculty recommendation or (b) by any
administration review.
43
HIJ Points (PLU: Managerial)
To underscore the analytical flaw here: Would
these individuals be managerial?….e.g., are their
policy positions “almost always followed” and
also “never independently reviewed?”
The President of the United States
 A United States Senator
 The officers of any company (besides
perhaps the CEO)
 HR officials

44
HIJ Points (Babcock)





What consequences are now apparent that require
changing the deferral standard under Spielberg-Olin
in effect for over 30 years?
New standard permits a Board de novo review;
doesn’t accommodate the parties’ collectivelybargained dispute resolution agreements.
New test is contrary to Federal Arbitration Act.
Two bites of the apple delays parties’ final
resolution of disputes and provides a one-sided
advantage to one type of contracting party only.
Disastrous effects on settlements of grievances by
laypersons.
45