ExxonMobil Global Services Company

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. ExxonMobil Global Services Company and Leo R. Suarez. Case 16–CA–269606 December 22, 2023 ORDER REMANDING1 BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND PROUTY On April 12, 2022, Administrative Law Judge Michael A. Rosas issued a decision in this case. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply brief. The General Counsel also filed cross- exceptions and a supporting brief, and the Respondent filed an answering brief. This case involves complaint allegations that certain provisions of the Respondent’s “Corporate Assets Poli- cy” violate Section 8(a)(1) of the National Labor Rela- tions Act because they interfere with, restrain, and coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. Applying the framework set forth in The Boeing Co., 365 NLRB No. 154 (2017), the judge found that the Corporate Assets Policy was unlaw- ful. The judge also found that the policy was unlawful under the framework set forth in Lutheran Heritage Vil- lage-Livonia, 343 NLRB 646 (2004), and that the Re- spondent violated Section 8(a)(1) by discharging em- ployee Leo Suarez for violating its unlawful Corporate Assets Policy and for engaging in protected concerted activities. Recently, in Stericycle, Inc., 372 NLRB No. 113 (2023), the National Labor Relations Board overruled The Boeing Co. and adopted a modified version of the framework set forth in Lutheran Heritage Village- Livonia, supra. In light of our decision in Stericycle, which implicates the complaint allegations in this case, we shall remand this proceeding to the judge for further consideration consistent with the framework adopted in Stericycle.2 1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 Our dissenting colleague contends that it is unnecessary to remand this case to the judge, and he instead would issue a notice to show cause to inquire whether the Respondent would view a remand as futile. As noted above, the bulk of the judge’s findings and determinations in the underlying proceeding were made applying The Boeing Co., which the Board subsequently overruled in Stericycle. In Stericycle itself, under materially similar circumstances, we found that a remand was appropriate to allow the judge to consider the rules at issue there under the new legal standard. Consistent with that approach, and contrary to our dissenting colleague, we find it similarly appropriate to remand this ORDER IT IS ORDERED that this proceeding is remanded to Administrative Law Judge Michael A. Rosas for the pur- pose of reopening the record, if necessary, and the prepa- ration of a supplemental decision addressing the com- plaint allegations affected by Stericycle and setting forth credibility resolutions, findings of fact, conclusions of law, and a recommended Order. Copies of the supplemental decision shall be served on all parties, after which the provisions of Sec- tion 102.46 of the Board’s Rules and Regulations shall be applicable. Dated, Washington, D.C. December 22, 2023 ______________________________________ Lauren McFerran, Chairman ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. Today, my colleagues again unnecessarily remand a case to the judge, citing the changed standard for analyz- ing the facial validity of work rules announced in Steri- cycle Inc., 372 NLRB No. 113 (2023). For the reasons set forth in my recent dissent in West Shore Home, LLC,1 which I will not repeat in full here, I similarly do not find remand to be appropriate in the instant case. Because remand will not materially benefit either the parties or the Board, there is no justification for the inherent delay and expense resulting from a remand. Accordingly, I would issue a Notice to Show Cause to inquire whether the Respondent would seek remand or whether, in light of the impossible rebuttal standard it faces un- case to the judge for consideration of the Corporate Assets Policy under the Stericycle standard (and for consideration of Suarez’s discharge pursuant to that allegedly unlawful policy). In arguing that a remand would not materially benefit either the parties or the Board, our dissent- ing colleague asserts that we are effectively directing the judge on remand to apply the Lutheran Heritage standard, which the judge al- ready applied as an alternative to his Boeing analysis. We are not. The Stericycle standard “is a modified version of the basic framework set forth in Lutheran Heritage,” and it “makes explicit that an employer can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.” Stericycle, 372 NLRB No. 113, slip op. at 2. 1 372 NLRB No. 143, slip op. at 1–3 (2023) (Member Kaplan, dis- senting) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 der Stericycle, it would view that remand as an exercise in futility. Indeed, the procedural history of this case, even more strongly than in West Shore Home, supports the conclu- sion that the Board should afford the parties the oppor- tunity to seek to avoid the additional costs and delay of remand. The parties here jointly moved to submit the case for a decision by the judge based on a stipulated record specifically to “avoid unnecessary costs and de- lay.” The judge granted that motion and decided this case based on the parties’ “Stipulation of Facts.” And, most compelling of all, the judge even proactively sought to avoid this remand by applying Lutheran Heritage Vil- lage-Livonia, 343 NLRB 646 (2004), in case the Board were to overrule Boeing Co., 365 NLRB No. 154 (2017). The judge astutely recognized that “in the event that the Board decides to change course regarding Boeing, the prudent approach, as well as administrative efficiency, warrants analysis under [Lutheran Heritage].” Unfortu- nately, this prescient action of applying the Lutheran Heritage test—effectively the same test that my col- leagues are now directing the judge to apply upon re- mand—was for naught. My colleagues attempt to justify remanding this case by asserting that the Stericycle test is materially different from the Lutheran Heritage test applied by the judge. In support of this assertion, they rely on language taken from Stericycle. Specifically, they conclude that “[t]he Stericycle standard ‘is a modified version of the basic framework set forth in Lutheran Heritage,’ and it ‘makes explicit that an employer can rebut the presumption that a rule is unlawful by proving that it advances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.’” Putting aside whether or not I agree that the Stericycle standard is materially different from the Lutheran Herit- age,2 my colleagues’ position completely ignores the fact that the judge already found that the employer’s rules was unlawful under the test set forth in Boeing. Again, 2 And, for the record, I do not view the standards to be materially different as the supposed difference with the Lutheran Heritage stand- ard is, for all intents and purposes, non-existent. They contend that, under Stericycle, a rule can in fact be found lawful if an employer “ad- vances legitimate and substantial business interests that cannot be achieved by a more narrowly tailored rule.” As I have recognized previously, however, this is an impossible standard. See, e.g., West Shore Home, slip op. at 2, 2 fn. 4. It is hard to imagine any rule that could not be written more narrowly; even if it were pages long and set forth every conceivable scenario it was meant to cover, I daresay that it would be possible to claim that it still could be more narrowly tailored. And, given that my colleagues have yet to come up with any hypothet- ical in which a rule could not be more narrowly tailored, despite repeat- ed requests, I can only assume that my colleagues have created a “straw man” exception to the Lutheran Heritage test. as explained in my dissent in West Shore Home, my col- leagues fail to explain what new evidence the parties could possibly produce that would not have been relevant to the Boeing analysis.3 Given that there is no new evi- dence to be proffered, all that remains is the application to the record evidence to the test set forth in Lutheran- Heritage/Stericycle. As my colleagues are aware, the Board applies de novo review in considering an adminis- trative law judge’s legal application of the record facts to the law. Accordingly, again, there is no justification for remanding this matter..4 Based on the posture of this case, there is absolutely no reason for the Board to wait for a supplemental judge’s decision before applying the law to the parties’ stipulated facts. Rather than disregarding the parties’ demonstrated interest in avoiding unnecessary costs and delay, as my colleagues do, I would afford the parties the opportunity to request that the Board decide this case now. Accordingly, I dissent. Dated, Washington, D.C. December 22, 2023 ______________________________________ Marvin E. Kaplan, Member NATIONAL LABOR RELATIONS BOARD 3 Nor, for that matter, do they explain how the judge could possibly find the rule unlawful under Boeing but lawful under Stericycle. 4 I recognize that my colleagues attempt to justify their decision to- day by stating that, “[i]n Stericycle itself, under materially similar cir- cumstances, we found that a remand was appropriate to allow the judge to consider the rules at issue there under the new legal standard.” Of course, I also disagreed with my colleagues’ decision to remand in Stericycle because, in my view, retrospective application of the new standard was inappropriate. Stericycle, slip. op. at 30-31 (Member Kaplan, dissenting). And I maintain that position here. Nevertheless, I question whether “we did it before” is really an appropriate basis upon which to decide whether to remand a case. Further, I note that, with all due respect to my colleagues, the circumstances with regard to this case are not materially similar to that in Stericycle. In Stericycle, the judge had decided the case solely on Boeing and, accordingly, had not con- sidered the legality of the rules under the Lutheran Heritage Standard. Here, because the judge has already applied the Lutheran Heritage standard, remand is even less appropriate than it was in Stericycle.