United States: New NLRB GC Memorandum Signals Changes Are Ahead

Last Updated: December 5 2017
Article by Michael J. Lotito and Maury Baskin

The National Labor Relations Board's new General Counsel, Peter Robb, has wasted no time in taking steps to chart a new direction for the Board. Two weeks after being sworn in as General Counsel, Robb has issued Memorandum 18-02, instructing NLRB regional directors on which types of charges should be submitted to his office for advice, and rescinding policy memoranda issued by his predecessor. While the memorandum is relatively brief, its substance is significant and telling. Many of the contentious decisions issued and policy shifts undertaken by the prior administration will likely be getting a second look.

Rescission of Prior Administration's GC Memoranda

General Counsel (GC) memoranda often lay the groundwork for new legal theories. The GC typically requires certain matters to be submitted to the GC's office so that the GC can pursue litigation to memorialize these new theories as Board precedent. GC Robb's memorandum notes that while he has not yet identified which new initiatives to pursue, his office is rescinding many prior memoranda. Notably, GC 15-04 makes this list. That memorandum significantly expanded the types of neutral policies and common work rules that the GC will consider in deciding whether to issue complaints for violation of Section 7 of the National Labor Relations Act.

Other memoranda on the chopping block include:

  • 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)
  • 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)

In addition, the GC announced several other initiatives no longer in effect, including, among others:

  • Efforts to extend Purple Communications, in which the Board held employers must generally allow employees to use the company's e-mail systems for union organizing or group discussion about the terms and conditions of employment during non-work time, to other electronic systems (e.g., internet, phones, instant messaging) if employees use those regularly in the course of their work.
  • Arguments that an employer's misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) of the NLRA.

The rescission of these and other initiatives indicates the new GC—at a minimum—will no longer consider them to be priorities.

Mandatory Submission to the GC

In the new memorandum, GC Robb explains:

the last eight years have seen many changes in precedent, often with vigorous dissents. The Board has two new members who have not yet revealed their views on many issues. Over the years, I have developed some of my own thoughts. I think it is our responsibility to make sure that the Board has our best analysis of the issues. To that end, I have developed the following guidelines which will serve as my mandatory Advice submission list.

This list identifies the areas in which the GC would like to weigh in. These topics touch upon many areas of great concern to employers over the past several years. They include:

  • Common employer handbook rules found unlawful. The GC requests submission of cases involving allegations of rules prohibiting "disrespectful" conduct or the use of employer trademarks and logos; rules governing "no camera" or "no recording"; and rules requiring employees to maintain the confidentiality of workplace investigations, among others.
  • Concerted activity for mutual aid and protection. The GC is interested in cases in which the conduct was found to involve "mutual aid and protection," but only one employee had an immediate stake in the outcome. The GC is also seeking cases finding employees' engagement in obscene, vulgar, or other highly inappropriate conduct did not cause them to lose protection under the NLRA.
  • Purple Communications. Cases should be submitted to the GC if they found employees have a presumptive right to use their employer's email system to engage in Section 7 activities.
  • Conflicts with other statutory requirements. Such situations might involve a finding that an employee's social media postings are protected even though such conduct could violate EEO principles.
  • Joint Employment. The GC appears to be interested in cases in which the new Board could revisit its decision in Browning-Ferris, in which it established a new test for finding joint employment based on evidence of indirect or potential control over the working conditions of another employer's employees.

Other issues making the GC's mandatory submission list include scenarios involving an off-duty employee's access to property; protected work stoppages; expanded application of an employee's Weingarten rights; disparate treatment of represented employees during contract negotiations; successorship, unilateral changes consistent with past practice; establishing a duty to bargain before imposing discretionary discipline where parties have not executed initial collective bargaining agreement; dues checkoff; and remedies.

The GC memorandum states that until the Board overturns existing precedent on these issues, the GC's office will continue to enforce the Board's rulings as written, though the GC reserves the right to suggest "alternative analysis" in certain cases. By highlighting these issues and making them mandatory subjects for advice from the GC's office, the memorandum opens the door for those prior decisions to be overruled or amended by the new members of the Board.

The directive from the GC to all Board regions is likely to lead to a re-examination over time of the some of the most far-reaching and precedent-setting decisions from the GC's predecessor and the Board he supported. But change typically happens rather slowly, especially as the term of the current Chair of the NLRB is coming to an end. Nonetheless, the GC's directive is compelling. We will continue to monitor the NLRB developments closely.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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