Happy Holidays To Employers From The NLRB: General Counsel Memorandum Signals Major Changes In The Agency

by Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP

As many employers are all too aware, over the past several years, the National Labor Relations Board (NLRB) has pursued an aggressive agenda, through case decisions and agency rulemaking, to make it easier for labor unions to organize workers and to otherwise expand employee rights to engage in concerted, protected activities.  While this has created a challenging landscape for employers, a recently issued memorandum by the NLRB’s new General Counsel indicates that changes are on the horizon –  and these changes should make employers very merry indeed.

On November 8, 2017, the Senate confirmed the nomination of Vermont labor lawyer Peter Robb, a Trump nominee for General Counsel (“GC”) of the NLRB. In his role as General Counsel for the NLRB, the new GC will have a vast array of responsibilities, including reviewing complaints on charges filed and deciding whether to advance them to the Board for decision; managing all regional offices and NLRB attorneys throughout the country; and setting policies by arguing cases before the Board and issuing memoranda.

And the new GC has wasted no time in getting things started. On December 1, 2017, a mere two weeks after he was sworn into office, Robb issued Memorandum GC 18-02.  In a bold move, the Memorandum creates a mandatory Advice review of many Board decisions issued under the Obama administration. Additionally, it immediately rescinds many memoranda of past General Counsels of the NLRB – including many that caused the greatest degree of employer frustration.

With respect to the review requirement, the Memorandum mandates three categories of “significant legal issues” that Regions must submit for advice. The categories include: (1) cases over the last eight years that overruled precedent and involved one or more dissents; (2) cases involving issues that the Board has not decided; and (3) any other cases that the Region believes will be of importance to the General Counsel.

In addition to these broad categories, the Memorandum also outlines specific legal issues that must be reviewed. Some of the major areas include:

Concerted Activities for Mutual Aid and Protection: The new GC wishes to review Board findings under two instances: (1) where mutual aid and protection existed where only one employee had an immediate stake in the outcome, and (2) where the employee did not lose protection when he engaged in obscene, vulgar, or inappropriate conduct.

Handbook Policies: Some handbook topics that will be reviewed include: (1) rules prohibiting disrespectful conduct, use of employer trademarks and logos, and the use of camera or other recording devices; (2) employee confidentiality rules; and (3) other rules which would be different if Miscimarra’s Lutheran Heritage test was used.

Purple Communications: The new GC will review the Board’s finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities.

Conflict with other Statutory Requirements: The new GC wants to look at whether racist comments by picketers are protected under Clear Pine Mouldings and whether social media postings should be protected even though an employee’s conduct may violate EEO principles.

Joint Employer: The new GC wishes to look at the Board’s finding that joint employer status exists where there is only indirect or potential control over the working conditions of another employer’s employees.

Other topics that the new GC wants to be submitted for review include work stoppages, off-duty employee access to property, Weingarten interviews, application of Weingarten in the drug testing context, disparate treatment of represented employees during contract negotiations, successorship, unilateral changes consistent with past practice, the duty to bargain before discretionary discipline where no CBA exists, duty to provide witness statements to union, dues check-off, and remedies.

In addition to the list of issues that require mandatory submission to Advice, the new GC also immediately rescinded many past memoranda from his predecessor General Counsels. The following memoranda are now rescinded:

  • GC 17-01 (General Counsel’s Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context)
  • GC 16-03 (Seeking Board Reconsideration of the Levitz Framework)
  • CG 15-04 (Report of the General Counsel Concerning Employer Rules)
  • GC 13-02 (Inclusion of Front Pay in Board Settlements)
  • GC 12-01 (Guideline Memorandum Concerning Collyer Deferral)
  • GC 11-04 (Default Language)
  • OM 17-02 (Model Brief Regarding Intermittent and Partial Strikes) (Regions should submit cases involving intermittent strikes to Advice).

Further, the new GC has immediately rescinded the following initiatives: expansion of Purple Communications to other electronic systems; overturn of the Board’s Tri-cast doctrine regarding the legality of employer statements to employees; the overturning of Oil Capital; the overturning of IBM to apply Weingarten in non-union settings; and the argument that an employer’s misclassification of employees as independent contractors independently violates Section 8(a)(1).

While such a sweeping change to the Board’s processes and initiatives may seem like cause to pop the cork on the champagne, employers shouldn't get too excited just yet. While the Memorandum certainly represents a fundamental shift in policy, the GC has noted that the Board will continue to apply its precedent, even in cases where the GC disagrees with the legal principles. Thus, he has explained, “cases should be processed and complaints issued according to existing law. No new theories will be presented on cases that have been fully briefed to the Board in order to avoid delay.”

Still, while the old law remains in effect and there is no certainty as to how the NLRB will rule in the future, the fact that GC Robb has taken such immediate and decisive action to revisit some of the most controversial Board initiatives should give employers a great deal of hope.  If the agency continues along this course, employers may see a number of positive changes that would allow them to operate their businesses with fewer restrictions from the NLRB – and that would make for a very happy new year.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Constangy, Brooks, Smith & Prophete, LLP | Attorney Advertising

Written by:

Constangy, Brooks, Smith & Prophete, LLP

Constangy, Brooks, Smith & Prophete, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.