United States: New Labor Board GC Signals Overturning Obama-Era Rulings, But Anticipated Vacancies And Recusals Create Uncertainty

On November 8, 2017, Peter B. Robb was sworn in as the General Counsel (GC) of the NLRB for a four year term. Robb succeeds Richard Griffin, who has been the GC since November 2013. Robb wasted no time in taking initial steps to undo many of the NLRB's more controversial recent decisions. On December 1, 2017, Robb issued Memorandum 18-02 directing the NLRB's regional offices on which types of charges should be submitted to his Division of Advice and rescinding policy memoranda issued by the prior GCs.

The Board's GC comes with broader responsibilities than the typical GC position at any other federal agency. In particular, the Board's GC is empowered with unreviewable prosecutorial discretion in determining which unfair labor practice charges are pursued as formal complaints. As such, the GC selects which cases are considered by the Board and can therefore control the development of Board precedents. Thus, the GC is the primary gatekeeper for Board policy by choosing which cases to argue before the Board and issuing internal guidance to regional offices and their lawyers on which types of matters to pursue.

Mandatory Submissions to the GC's Division of Advice

The December 1 memorandum provides a mandatory list of issues that must be submitted to the Division of Advice for further analysis. In the memorandum, Robb explains that: "the last eight years have seen many changes in precedent, often with vigorous dissents. The Board has two new members [Board Members William J. Emanuel and Marvin E. Kaplan] 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." The list identifies 26 categories of unfair labor practice cases involving "significant legal issues" that should be submitted to the Division of Advice, including the following:

  • 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 – Practically speaking, this implicates a majority of the key Board decisions issued by the Democratic appointees of President Obama since most of those rulings included a dissenting opinion by Republican Board members Philip A. Miscimarra or Harry I. Johnson, or both.
  • Concerted activity for mutual aid and protection – The GC requests submission of cases involving conduct found to involve "mutual aid and protection", but where only one employee had an immediate stake in the outcome (e.g., individual sexual harassment claims), as well as cases finding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct.
  • Common employer handbook rules found unlawful in union and union free workplaces – The GC requests submission of work rule cases 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. The GC also is interested in cases where the outcome would be different if Chairman Miscimarra's proposed substitution for the Lutheran Heritage test was applied (we submit these are voluminous).
  • Employees' presumptive right to use their employer's email system to engage in Section 7 activities in union and union-free workplaces ( Purple Communications).
  • Joint employer – Cases should be submitted to the GC if they involve a finding of joint employer status based on evidence of indirect or potential control over the working conditions of another employer's employees under Browning-Ferris Industries of California, Inc.
  • NLRB findings in conflict with other statutory requirements – The GC is interested in cases finding an employee's conduct protected by the National Labor Relations Act even though employee's conduct could violate other EEO principles such as Title VII.

The GC also identified the following mandatory submissions: cases involving working stoppages; off-duty access to property; successorship; witness statements; dues check-off; Weingarten rights; duty to bargain before imposing discretionary discipline where parties have not executed initial CBA; disparate treatment of represented employees during contract negotiations; unilateral changes consistent with past practice; and remedies.

While the memorandum states that the GC's office will continue to enforce the Board's current precedent, the GC will seek submissions from the NLRB's regional offices and the GC expressly reserves the right to "provide appropriate guidance on how to present the issue to the Board" including providing an "alternative analysis" to the Board.

Previous Agency Guidance Rescinded

Robb acknowledged that while prior GCs have often identified novel legal theories that they want explored through mandatory submissions to the Division of Advice, he has not yet identified any such initiatives. For now, however, Robb has already rescinded seven prior GC memorandums including:

  • GC 15-04 – Report of the General Counsel Concerning Employer Rules – This memorandum greatly expanded the policies and common work rules the GC would find unlawful in union and union-free workplaces under Section 7 of the National Labor Relations Act (e.g., rules regarding confidentiality; conflict-of-interests; social media; use of company logos, copyrights, and trademarks; third-party communications with the media and government agencies; and restrictions on employees leaving from work);
  • GC 16-03 – Seeking Board Reconsideration of the Levitz Framework;
  • GC 12-01 – Guideline Memorandum Concerning Collyer Deferral;
  • GC 11-04 – Default Language;
  • GC 13-02 – Inclusion of Front Pay in Board Settlements; and
  • OM 17-02 – Model Brief Regarding Intermittent and Partial Strikes.

In addition, the GC rescinded five initiatives set out in prior Advice memoranda including the following:

  • Seeking to extend Purple Communications to other electronic systems if employees use those regularly in the course of their work (e.g., internet, phones, instant messaging); and
  • Arguments that an employer's misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) of the National Labor Relations Act.

Future Cases Before Five-Member Board Not All Rosy for Employers With Possible Vacancies and Recusals

The GC memorandum to all regional offices will likely lead to overturning some of the sweeping decisions of the Obama-Board. However, reexamination of these precedents will be highly dependent on the specific case and the composition of the five-member Board deciding the case.

In October, 2017, the Senate confirmed William Emanuel, the second Trump nominee to the Board, giving the Board a Republican 3-2 majority for the first time since 2007. However, Chairman Miscimarra's term expires on December 16, 2017, at which point there will be a 2-2 split by party lines until that vacancy is filled.

To complicate matters further, Board Member Emanuel has committed to recusing himself for two years following his appointment to the NLRB in all cases in which his former firm, Littler Mendelson, or his own former clients are a party or represent a party in a case before the Board. On November 21, 2017, at the request of Senator Elizabeth Warren (D-Mass), Board Member Emanuel provided two recusal lists: (1) his former clients at Littler Mendelson; and (2) cases currently pending before the Board in which Littler Mendelson is a legal representative. While unions have urged the NLRB to block Board Member Emanuel from deciding other cases involving issues he advocated for/against at his former firm (e.g., class action waivers), at present time, it appears Board Member Emanuel only intends to recuse himself from cases involving (1) and (2) above. Thus, in most cases employers should still face a 3-2 Republican majority as long as Trump fills the anticipated vacancy left by Chairman Miscimarra.

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