Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.

In GC Memo 18-02, the new General Counsel of the NLRB listed “Disparate treatment of represented employees during contract negotiations” as requiring submission to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case, citing to the Obama Board’s decision in Arc Bridges, Inc., 362 NLRB No. 56 (2015). The new GC described Arc Bridges as “Finding unlawful the failure to give a company-wide wage increase to newly represented employees during initial bargaining, even where there was no regular, established annual increase and the employer was concerned that it would violate the Act if it unilaterally provided the increase to represented employees.” The GC Memo 18-02 suggests the GC may disagree with the Arc Bridges decision.

In Arc Bridges, while an employer was negotiating an initial collective bargaining agreement, it gave a 3% wage increase to all employees outside of the bargaining unit but did not provide any increase to bargaining unit employees. The Board found that the employer’s actions were unlawfully motivated and violated Section 8(a)(3) of the NLRA. The Board observed that an employer can treat represented and unrepresented employees differently during the course of negotiations, so long as the disparate treatment is not unlawfully motivated. The Board then proceeded to find that the employer’s decision to withhold the wage increase from union-represented employees was motivated by antiunion animus, and ordered the employer to retroactively pay each of the affected employees for the increase they would have received, plus interest compounded daily, plus compensation for any adverse tax consequences.

Then-Member Miscimarra vigorously dissented, reasoning that in his view, the evidence manifestly failed to support an inference of unlawful motivation. He also reasoned that even if the evidence showed otherwise, the employer had shown it would have withheld the increase for legitimate, nondiscriminatory reasons, which included preserving bargaining leverage and avoiding a Section 8(a)(5) charge.

Miscimarra observed that “Under the Board’s prevailing but mistaken view,” the General Counsel can show that protected conduct by employees was a motivating factor in an employer’s decision simply by showing generalized antiunion animus. Instead, Miscimarra observed, the General Counsel must establish a motivational link between the protected activity and the adverse employment action.

Miscimarra made these additional observations to support his view that the Board was mistaken:

  • It is important to recognize that it is not unlawful “antiunion motivation” when an employer desires to be more successful in union negotiations, and the Board has long held that employers can offer different benefits to represented and unrepresented groups of employees as part of its bargaining strategy.
  • Annual wage increases at the employer were not the status quo, and refraining from giving unit employees a wage increase while bargaining was ongoing was what the employer was supposed to do; otherwise, the employer would have violated Section 8(a)(5).
  • Especially in this context, the Board must require strong and convincing evidence sufficient to prove unlawful motivation; otherwise, employers would run the risk of violating the Act whenever they comply with their legal obligation to refrain from automatically giving represented employees whatever increases are granted to other employees.
  • The practical effect of the majority’s decision was to put the employer in a no-win situation, and the Board cannot reasonably adopt standards that cause parties to be in violation of the Act regardless of the actions they take.

In our view, Miscimarra’s approach makes more sense from both a practical and a legal standpoint. And GC Memo 18-02 suggests that the new NLRB General Counsel may agree, possibly giving employers something to look forward to in 2018.