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NLRB Advice Leader Discusses Notable Decisions At ABA Talk

By Braden Campbell · March 2, 2021, 7:44 PM EST

The National Labor Relations Board's ruling that the publisher of conservative website The Federalist intimidated would-be unionists in a threatening tweet shows that employers' "intent is irrelevant" in such suits, the board's top legal theorist said in a talk Tuesday on the NLRB's biggest rulings from last year.

Associate general counsel Richard Bock highlighted more than a dozen notable decisions in a breezy presentation at the midwinter meeting of the American Bar Association's Committee on the Development of the Law Under the National Labor Relations Act. Among them were the FDRLST Media decision and rulings on employers' power to change job conditions without union permission, and the extent of protections for job actions.

Bock panned Ben Domenech's suggestion that he was joking when he threatened to "send back to the salt mine" any workers who sought to unionize The Federalist, saying the board rightly looked at whether workers would feel the tweet was a threat, not whether Domenech meant it as one, Bock said.

"This is viewed through the eyes of the employee, as many NLRB tests are [and] as they should be," Bock said. "[NLRA] Section 7 is written to protect the employee."

The November ruling in the FDRLST Media case was far from the board's most significant for labor law practitioners last year but has more "sex appeal" than most on Tuesday's agenda, Bock said. He develops and disseminates the legal theories of the board's prosecutor as head of the agency's Division of Advice.

Agency prosecutors accused Domenech of violating NLRA Section 8's ban on dissuading workers from exercising their union rights when he tweeted "FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine" after workers at liberal-leaning Vox Media walked out. The board found workers "would reasonably view the message" as a threat of punishment should they form a union, ordering Domenech to take down the tweet and alert workers to their rights.

Bock said he took issue with Domenech's suggestion that the board couldn't take a joke, saying the board's test aims to ascertain how an employer's comments land, not how they were meant. He also hit back at comments "trashing the [board's] objective standard" in the wake of the ruling, saying it would not be feasible for the board to take affidavits "from 300 people who are going to testify this was just a joke."

"I don't think that's the way to go," Bock said. "I don't think the board is going to go that way … [this test] will stand up for years to come."

Bock also discussed the NLRB's clarification of its new approach to unilateral change cases in a decision involving Portland broadcaster KOIN-TV.

The board reformulated its test in a 2019 ruling known as MV Transportation Inc., which gave employers more power to tweak job terms and conditions that arguably fall within so-called management's rights clauses letting them change standards without unions' permission. But the board found KOIN-TV lacked the power to make certain challenged changes because its management's rights clause had expired, limiting MV Transportation's reach.

The decision "sews up an open area" of unilateral change law, though it's unclear how long it will stand once political control of the board changes hands, Bock said.

Bock called "interesting" an October decision analyzing when protections for job actions end. The board, in a ruling involving Ohio Bell Telephone, said the telecom company violated the NLRA when it wrote up workers who reported in street clothes to protest a policy that threatened to cause a uniform shortage. But the board said the protest ended when workers reported, finding Ohio Bell telephone did not break the law when it assessed attendance points on workers who were late dispatching to the field.

"They do draw a line in the sand as to when concerted activity ends," Bock said. "I don't know if we're going to have exactly the same fact pattern again, but I can see, in other cases, there being an analogy to this."

--Editing by Leah Bennett.

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