United States: NLRB GC Boldly Defines Direction Of Board Prosecution In New GC Memo

Last Updated: December 13 2017
Article by Mark Theodore

The new NLRB General Counsel Peter Robb has been fast at work. A short two weeks after being sworn in on November 17, 2017, the new General Counsel issued a memorandum making clear his intention to re-examine much of the legal precedent that was changed during the last 8 years,–and to undo many other initiatives of his predecessor.

As we recently pointed out, the NLRB has wide prosecutorial discretion and the future direction can usually be divined from the types of cases the GC mandates should be sent to the Division of Advice.

In Mandatory Submissions to Advice GC Memorandum 18-02 (December 1, 2017) the GC Robb had quite a bit to say about the direction of the agency going forward. GC Robb started by noting that he had previously worked for the NLRB and that during his career he had "worked as a [NLRB] field attorney in Region 5, a supervisor for the FLRA and a Chief Counsel to a Board Member;" he also handled many NLRA issues as a private practitioner.

The memo then acknowledged the reality of the last several years:

As you know, 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, in the tradition of my predecessors as General Counsel. For convenience, I have tried to group the issues. If you have further questions, please contact Advice.

No Intention To Disturb Cases That Have Been Fully Submitted, But. . .

The memo states that the GC respects existing legal precedent does not intend to disturb pending cases that have been fully briefed before the Board or courts in order to avoid delay of processing. However, with respect to all other cases, those that involve "significant legal issues" should be submitted to Advice. The GC defined "significant legal issues" as "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."

Alternative Theories To Be Advanced In Newer Cases

Interestingly, the GC noted, "Cases where complaint issuance is appropriate under current Board law, but where we might want to provide the Board with an alternative analysis, may be submitted at any time after the complaint issues, but must be submitted prior to the Region filing a brief or other statement of position to the Board on that issue." The memo lists fifteen examples of cases where under current law submission of a complaint is warranted but where an alternative theory could be provided. These are the cases that would give the Board an opportunity to reverse the case law which reversed precedent or expanded the scope of existing precedent. Of the 15, we can see some issues that commonly vex employers:

– Common employer handbook rules found unlawful

o Rules prohibiting "disrespectful" conduct. . .
o Rules prohibiting use of employer trademarks and logos . . .
o No camera/recording rules . . .
o Rules requiring employees to maintain the confidentiality of workplace investigations . . .
o Other rules where the outcome would be different if Chairman Miscimarra's proposed substitution for the Lutheran Heritage test was applied (see dissent inWilliam Beaumont Hospital, 363 NLRB No. 162 (2016))

and

– Purple Communications

o Finding that employees have a presumptive right to use their employer's email system to engage in Section 7 activities (361 NLRB No. 126 2014)

and

– Total Security

o Establishing duty to bargain before imposing discretionary discipline where parties have not executed initial collective bargaining agreement (364 NLRB No. 106 (2016))

and

-Duty to provide witness statements to union

o Finding that witness statements must be disclosed if that would be appropriate under the Detroit Edison balancing test (Piedmont Gardens, 362 NLRB No. 139 (2015), overruling Anheuser-Busch, 237 NLRB 982 (1984))

among others....

Seven GC Guidance Memos Rescinded

And, the memo continues, "new General Counsels have often identified novel legal theories that they want explored through mandatory submissions to Advice. I have not yet identified any such initiatives, but I have decided that the following memos shall be rescinded. . ." The memo then rescinds 7 GC memos that provide guidance under current law, including:

  • GC 16-03 (Seeking Board Reconsideration of the Levitz Framework). This memo seeks to explore the possibility of overturning the established legal framework which permits an employer to withdraw recognition of a union when it has a good faith basis to believe the union has lost representative status in favor of making a decertification election the only way for employees to end union representation; and
  • GC 15-04 (Report of the General Counsel Concerning Employer Rules). This is the memo that gives guidance on all handbook policies. Given that handbook policy cases are now subject to "alternative theories" this is a pretty clear signal the Board will ease up on finding portions of employer policies, without any context, to be unlawful.

What does it mean that these GC Memos have been rescinded? Not much in the near term. While many employers (and unions) rely upon GC Memos for guidance and support in existing cases, such pronouncements are not binding. If Board cases exist that hold a handbook provision to be unlawful then the precedent stands. As the GC pointed out, he intends to respect existing law but is signaling, like many others, that change is coming.

Five Types Of Cases Will No Longer Be Pursued

Finally, the GC's new memorandum rescinds five initiatives sent to Advice by the previous General Counsels including:

  • seeking to extend Purple Communications to other electronic systems (e.g., internet, phones, instant messaging) if employees use those regularly in the course of their work; and
  • arguing that an employer's misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1) (but Regions should submit to Advice any case where there is evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity); and
  • seeking to apply Weingarten in non-union settings (which we previously reported was likely to happen)

This can be construed as an abandonment of the attempt to change the law in these areas.

More To Come

A lot to digest for sure. While it isn't exactly a roadmap of the future,–everyone could predict that the new Board would take aim at the precedent changes during the last several years,–it is more like a well marked trail. The GC likely will signal his priorities in future memoranda. We will keep you posted on further developments.

NLRB GC Boldly Defines Direction of Board Prosecution in New GC Memo

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