Today’s News & Commentary — August 27, 2021

The NLRB issued an opinion on Wednesday charging an aluminum manufacturing company with Section 7 violations after firing an employee who wrote “whore board” at the top of an overtime sign-up sheet. The employee was protesting the aluminum company’s unilateral imposition of new overtime procedures, under which employees needed to sign-up for overtime on a sheet an entire week in advance. After the NLRB ruled that the aluminum company violated the NLRA for this activity in 2018, the D.C. circuit remanded the case on the basis that the NLRB failed to take into account the company’s other legal obligations—namely, to maintain a harassment-free workplace under state and federal equal employment opportunity laws. Following the test laid out in General Motors, the Board on Wednesday found that the employee was disciplined for exercising the protected activity of protesting the new policy, noting that similar profane language had been tolerated in other contexts by the employer. The Board determined that writing “whore board” on the sign-up sheet was not so egregious as to result in a loss of Section 7 protections.

Concurring in judgment, Judge McFerran would have more straightforwardly resolved the case without reference to General Motors through a determination that a single instance of writing “whore board” on an overtime signup sheet “could not plausibly constitute a basis for establishing a hostile work environment claim under federal discrimination precedent.” The phrase “whore board” was properly understood by everyone at the Company to be directed at the labor dispute over the overtime policy, rather than some sort of discrimination on the basis of gender, sex or some other protected characteristic.

In a separate ruling yesterday, the NLRB held that a nursing home in New Jersey violated federal labor law by unilaterally modifying employees’ health insurance plans. First, the nursing home clearly violated its duty to bargain by terminating the health insurance plan of its 150 employees without even informing the employees or the union that they were doing so. The union reached a settlement with the nursing home to withdraw the NLRB charge, which included that the nursing home would pay employees’ health care bills during the time they had no health insurance, implement a new health care insurance plan, and bargain with the union over a new collective-bargaining agreement. However, the nursing home did not follow through on reimbursing employees for outstanding medical bills, and unilaterally changed employees’ health insurance to the new plan referenced in the settlement. The board ruled that even such a “unilateral change to the [nursing home’s] earlier unilateral change of unit employees’ health insurance” constituted a violation of the employer’s obligation to maintain the status quo health plans until it had bargained with the union to an agreement or impasse on the matter; the settlement did not constitute sufficient evidence of an agreement with the union. The Board’s remedy included that the nursing home would need to reimburse employees not only for uncovered medical expenses during the time that employees lacked insurance, but also for any increases in premiums, copays, and other out-of-pocket expenses incurred as a result of the changed medical plan.

In other news, federal unemployment aid is set to expire in 10 days for the roughly half of states that have not cut off benefits already. This means that workers will not be able to claim federal unemployment benefits for the week starting September 6th and onward. Nonetheless, the Department of Labor offered guidance on how States could renew the benefits by “offering periodic or one-time relief payments to workers currently on unemployment,” the Insider reported yesterday. Biden has previously urged States with high unemployment rates to take up this offer. Nevertheless, more than 11 million people are expected to lose their unemployment benefits on September 6.

Tomorrow, the NLRB will swear-in David Prouty, who was formerly general counsel for SEIU 32BJ and UNITE HERE, which will cement a three-seat Democratic majority on the Board. The Democratic board is expected to overturn many of the more employer-friendly decisions of the Trump NLRB over the coming years.