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December 2017

Happy Holidays to Employers from the NLRB General Counsel

In a sweeping memorandum issued on December 1, 2017, which already has seen some of its foreshadowed effects come to fruition, the new General Counsel (“GC”) of the National Labor Relations Board (“NLRB” or “Board”), Peter B. Robb, set forth guidelines for regional offices to follow when seeking advice from the GC’s office. In doing so, the GC put all affected parties on notice that significant (and, for employers, welcome) changes were on the horizon.

The General Counsel’s Memo

In Memorandum GC 18-02, after first clarifying that no new theories would be presented on cases that had been fully briefed to the Board or cases pending in the courts, the GC mandated that all cases involving “significant legal issues” be submitted to the GC’s Division of Advice. Cases involving “significant legal issues” are defined to include “cases over the last eight years that overruled precedent and involved one or more dissents, cases involving issues that the Board has not decided, and any other cases that the Region believes will be of importance to the General Counsel.” The memo then identified specific types of Board decisions that “might support issuance of complaint, but where [the GC’s office] might want to provide the Board with an alternative analysis.” Those included:

  • Decisions finding that employee conduct was for mutual aid and protection, and thus protected under Section 7, where only one employee had an immediate stake in the outcome;
  • Decisions finding that employee’s conduct did not lose protection under Section 7 despite being obscene, vulgar, or highly inappropriate;
  • Decisions finding that employer handbook rules were unlawful because employees might reasonably construe them to prohibit Section 7 activity (including rules prohibiting “disrespectful” conduct, rules prohibiting use of employer trademarks and logos, no camera/recording rules, and rules requiring employees to maintain the confidentiality of workplace investigations);
  • Decisions finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activity, even where the employer prohibits use of its email system for any non-business activity;
  • Decisions finding racist comments by picketers and social media postings to be protected Section 7 activity even though the conduct may violate EEO principles;
  • Decisions expanding the scope of permissible conduct by union representatives in Weingarten (in which the Supreme Court held that an employee has a Section 7 right to the presence of a union representative at an investigatory interview that the employee reasonably believes may result in discipline) interviews;
  • Decisions finding joint employer status based on evidence of indirect or potential control of the working conditions of another entity’s employees.

These examples all relate to relatively recent decisions and trends by the Board that questionably expanded the scope of employee protection to the detriment of employers everywhere.

In addition to the mandatory Advice list, the GC also rescinded several memoranda that had been issued by his predecessor.  Like the topics on the mandatory Advice list, these memoranda were seen by many in the employer camp as exceeding the scope of the intended protection of the National Labor Relations Act (“Act”):

  • GC 17-10 – General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context (outlining various scenarios where the Act did and did not apply in the University context);
  • GC 16-03 – Seeking Board Reconsideration of the Levitz Framework (delineating when an employer may withdraw union recognition);
  • GC 15-04 – Report of the General Counsel Concerning Employer Rules (defining the scope of prohibited employer rules as violations of Section 7 rights);
  • GC 13-02 – Inclusion of Front Pay in Board Settlements (permitting Agency settlements to include front pay);
  • GC 12-01 – Guideline Memorandum Concerning Collyer Deferral (limiting the amount of time the Board will defer resolution of a charge pending arbitration proceedings);
  • GC 11-04 – Default Language (requiring that settlement agreements include language outlining a procedure for seeking default against a party for failure to fulfill obligations under the agreement);
  • OM 17-02 – Model Brief Regarding Intermittent and Partial Strikes.

Finally, the GC stated that several initiatives set forth in previous Advice memoranda were no longer in effect, again focusing on certain trends and initiatives that had come under fire from the employer side.  Those include:

  • Seeking to extend the decision in Purple Communications (which held that employers may not prohibit employees from using work email for non-business purposes where it included Section 7 activity) to other electronic systems (e.g., internet, phones, instant messaging);
  • Seeking to overturn the Tri-cast doctrine regarding the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they elect union representation;
  • Seeking to overturn the decision in Oil Capitol and place the burden on respondents to demonstrate that a salt would not have remained with the employer for the duration of the claimed back pay period;
  • Arguing that an employer’s misclassification of employees as independent contractors, by itself, violates Section 8(a)(1) of the Act (but noting that Regional Offices should submit to Advice any case involving evidence that the employer used the misclassification to interfere with Section 7 activity); and
  • Seeking to apply Weingarten to non-union settings.

Recent Board Decisions

While the GC’s memo provided direction to the various Regional Offices and outlined those issues on which his approach likely would differ from his predecessor, it was careful to note that it remained to be seen how the Board ultimately might rule on these issues. That being said, several Board decisions issued in the wake of the General Counsel’s memo appear to indicate a commonality of opinion between the GC’s Office and the new Board majority.  For example, on December 14, 2017, in Hy-Brand Industrial Contractors, 365 NLRB No. 156 (2017), the Board overturned the Browning-Ferris standard for the determination of joint employer status, and limited the number of instances where two entities will be deemed joint employers for purposes of liability. (See Gordon & Rees article) And the same day, the Board overturned another decision expressly referenced in the GC’s memo. Specifically, in The Boeing Company, 365 NLRB No. 154 (2017), the Board overturned the Lutheran Heritage standard for determining when an employer handbook rule would be deemed a violation of Section 7 rights. Pursuant to the Board’s decision, an employer will no longer be deemed to have violated the Act merely because an employee “reasonable construed” a particular rule to prohibit Section 7 activity. (See Gordon & Rees article).

What Does This Mean?

In light of the General Counsel’s memo, as well as the decisions issued in its immediate aftermath, it appears that a reversal of course is well under way at the NLRB. For employers, this is welcome news, as the decisions issued under the prior administration seemed to consistently expand the scope of liability while providing employers with little guidance regarding how to comply with the requirements of the Act. While the GC’s memo does not, and indeed cannot, overturn those prior decisions, the message to employers seems clear—relief is in sight.

Employment Law

Employment Law