Board Restores Prior Standard Governing Employer Statements about Unionization’s Impact on Employer-Employee Relationship

November 08, 2024 Today, the National Labor Relations Board issued a decision in Siren Retail Corp d/b/a Starbucks, overruling Tri-Cast, Inc., 274 NLRB 377 (1985) and clarifying the test that the Board will use to evaluate whether employer predictions about the impact of unionization on the relationship between individual employees and their employer are unlawful threats. While Tri-Cast deemed most employer statements about the impact of unionization on the relationship between individual employees and their employer to be categorically lawful, moving forward the Board will analyze such statements under the same longstanding test it uses to evaluate other potentially threatening or coercive statements. That approach, which is grounded in the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), mandates that – to be lawful – employer predictions of negative impacts from unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If such a prediction is not grounded in objective fact, or predicts negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.” The Board made clear that this change in the governing standard will be applied prospectively only, to appropriately accommodate the reasonable reliance employers may have previously placed on Tri-Cast’s categorical rule. “The rule that we return to today brings greater consistency to the Board’s approach in evaluating potentially threatening statements,” said Chairman Lauren McFerran. “By evaluating employer predictions regarding unionization in a careful and case-specific manner, the Board better protects workers’ right to make a free and fair choice about union representation while respecting an employer’s prerogative to share their views in a non-coercive manner.”

Bedard v. City of Los Angeles - filed Oct. 31, 2024, Second District, Div. Three

Administrative Law Substantial evidence supported a trial court’s conclusion that a police officer was terminated due to her refusal to take the COVID-19 vaccine; the City of Los Angeles lawfully passed a legal ordinance requiring all city employees to become vaccinated against COVID-19 or request an exemption and follow the testing procedures. Bedard v. City of Los Angeles - filed Oct. 31, 2024, Second District, Div. Three Cite as 2024 S.O.S. 3490 Full text click here >http://sos.metnews.com/sos.cgi?1124//B331062

Bath v. State - filed Sept. 25, 2024

Employment Law A trial court should have accepted as true plaintiffs’ allegations providing security at a prison was among the principal activities they were employed to perform in considering the merits of the defendant’s demurrer; whether the plaintiffs provide safety and security was a question of fact that cannot be resolved on demurrer. Plaintiffs may bring wage claims only to the extent they claim they were not paid for time they spent on work-related activities that are compensable under their union’s memorandum of understanding, and the Fair Labor Standards Act; they could not separately claim they are also entitled to additional compensation under the general state wage laws of Labor Code. Bath v. State - filed Sept. 25, 2024, publication ordered Oct. 23, 2024, First District, Div. Two Cite as 2024 S.O.S. 3345 Full text click here >http://sos.metnews.com/sos.cgi?1024//A167908.

Wentworth v. Regents of the University of California

Employment Law A public university professor raised a triable issue of material fact about whether the university’s regents violated the Information Practices Act by leaking to the media a letter about student complaints against him and disclosing information about his disability accommodation at a faculty and student meeting. Wentworth v. Regents of the University of California - filed Sept. 30, 2024, First District, Div. Four Cite as 2024 S.O.S. 3388 Full text click here >http://sos.metnews.com/sos.cgi?1024//A168296

Doe v. Second Street Corporation

Employment Law Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a plaintiff’s sexual harassment claims alleging continuing violations both before and after the EFAA’s effective date are exempt from mandatory arbitration; plaintiff’s other causes of action are also exempt from mandatory arbitration under the EFAA because they are part of the same case. Doe v. Second Street Corporation - filed Sept. 30, 2024, Second District, Div. Three Cite as 2024 S.O.S. 3381 Full text click here >http://sos.metnews.com/sos.cgi?1024//B330281.

Mooney v. Fife; filed Sept. 30, 2024

Employment Law A False Claims Act retaliation claim requires proof of three elements: protected conduct; notice; and causation. In analyzing a retaliation claim, a court must use the McDonnell Douglas burden-shifting framework, rather than the Mt. Healthy framework commonly applied to First Amendment retaliation claims. The “investigating” requirement established by U.S. ex rel. Hopper v. Anton does not apply when the employee alleges that he was discharged because of efforts to stop violations of the False Claims Act. Mooney v. Fife; filed Sept. 30, 2024 http://sos.metnews.com/sos.cgi?1024//22-16328

Wentworth v. Regents of the University of California

Trial court erred in granting summary adjudication to U.C. Berkeley assistant professor's invasion of privacy claim. https://www.dailyjournal.com/users/sign_in