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

by Constangy, Brooks, Smith & Prophete, LLP
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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.

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