Since the change in Presidential administrations, the main topic has turned to what rules will a newly constituted NLRB change? With the addition of Marvin E. Kaplan the Board now has four members, which makes undoing some of the past few years a difficult task. But a four member Board also means there likely will be no further expansion of the law. Four members, split evenly between two different political parties and differing viewpoints means little may occur before the fifth member is confirmed sometime this Fall.
One can see evidence that this pendulum is in the process of swinging back in a recent Advice Memorandum released on September 7, 2017.
In General Electric, Cases 6-CA-176001 et al., Adv. Mem. dated December 1, 2016, Advice directed a Region to issue a complete on two cases "as vehicles to urge the Board to extend Weingarten rights to unrepresented employees and find that the Employer violated Section 8(a)(1)" by forcing an employee to submit to an investigatory interview without the assistance of a coworker and by "forcing another employee to submit to an investigatory interview in the presence of an anti-Union employee witness unilaterally designated by the Employer." At first blush, this sounds like it could represent a big change. Weingarten rights currently apply only to unionized employees, and so these "vehicles" could theoretically drive the Board to apply the rights to the 93% (give or take) of the private sector that is not unionized. You can hear Human Resources managers already saying, "you mean we might have to let any employee have a representative any time we want to have a discussion that might lead to discipline? The logistics of that are too difficult to imagine."
Except this Advice Memorandum represents no such thing for the simple reason that the Board is not in the habit of sharing its litigation strategy. The Division of Advice is the internal think tank of the NLRB. Its lawyers ponder closely the nuances of the Act, the legislative history of the law, and the Board's vast body of cases to assist the General Counsel with situations not addressed by current law. Advice also provides support for complex situations. Also, as we can see by this Memorandum, the Division also helps the General Counsel look for ways to change the law in a manner consistent with the direction the General Counsel would like to see the Board take. The product of Advice is a so-called Advice Memorandum, which is essentially a document setting forth the reasons why complaint should issue, or not. When an Advice Memorandum is released to the public the case is most certainly over because the government is not in the habit of sharing its litigation strategy prior to trial. We have previously discussed the release of Advice Memoranda when the Board wants to let the world know how it addressed certain situations, like when it dismissed a case involving the discharge of an employee over a social media posting.
In these cases, a review of the Board's docket shows that while trial was scheduled for earlier this year, the cases ultimately were closed based on "withdrawal" which most certainly means the objective of the Memorandum to expand Weingarten rights was deemed no longer viable given the change in the make-up of the Board.
It is an interesting read, however for three reasons. First, the Advice Memorandum sets forth the history of how Weingarten rights have shifted from unionized to both union and non-union and back. Second, it contains a good collection of NLRB Weingarten cases. Third, while the Memorandum explains the reason why these particular charges were worth taking a shot at expanding the law again. In the case the union "has never been certified or recognized" as the exclusive bargaining representative. Instead, the union has
functioned at the plant as a pre-majority labor organization since it was formed by a committee of workers in the fall of 2012. The Union has a constitution and was chartered by the National UE in August 2012. Its stated mission includes addressing issues that impact the interests of the entire workforce such as fair and consistent treatment workers by the Employer, equal pay for equal work, and protecting worker benefits. The Union has elected officers, including a network of trained stewards. Union members pay dues, and the Union holds regular membership meetings and engages in organizing drives and leafleting. The Union advises its members regarding avenues that the Employer has in place to address complaints and disciplinary issues.
While the employer does not recognize the union it has granted limited access of the union to its facility for purposes of meeting with employees. The union also has some ability to post literature.
Advice's analysis does not contain any earth shattering revelation, like "we discovered a heretofore unseen footnote in the Weingarten decision that says it should be applied to non-union workforces." Rather, Advice focuses on the policy considerations behind Weingarten and notes there are "unique factors" present in the set of facts that make a change in the law more "compelling." Those unique factors include, of course, the presence of a minority union with a "network of trained stewards who are subject to the [Union's] constitution and bylaws requiring fair representation of their coworkers."
Why publish this memorandum now? One can never know for sure. However, it is possible the outgoing General Counsel wanted to signal to the public that while there may be a change in direction of the Board, there are ways to keep up the fight: a minority union being one of them. Not as interesting as analyzing whether an employer's search of an employee's car constitutes an investigatory interview, but pretty revealing nonetheless.
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