Last week we blogged
about which decisions of the Obama-era National Labor Relations Board (NLRB)
might be most ripe for reversal under the NLRB’s new membership and General
Counsel. This week, on December 1, 2017,
we got further insight into those expectations when Peter Robb, the new General
Counsel issued a memorandum containing insights into his initial agenda as
General Counsel. The memorandum’s identification
of subjects for special consideration, along with its general tone, provide
further strong indications about the likelihood of coming significant policy
shifts at the NLRB in favor of employers.
The Memorandum,
GC 18-02 (“GC Memo 18-02”) identifies a wide range of cases that regional
offices must now submit to the NLRB’s Division of Advice, where its lawyers
perform legal analyses, including cases invoking Obama-era NLRB decisions that:
(1) have overruled precedent and involved one or more dissents over the past
eight years; (2) contain issues the NLRB has not yet decided; and (3) are
believed to be of importance to the General Counsel. Such mandatory advice subjects include:
- Section 7 concerted activity for mutual aid
- Employer handbook rules
- Findings of joint employer status, under the Browning Ferris Industries ruling, based on indirect or potential control over working conditions of another entity’s employees
- Employee use of employer email systems to engage in Section 7 concerted activity
- Strikes, work stoppages, and prior initiatives favoring protection of such activity
- Off-duty employee access to employer property
- Weingarten rights
- Status quo during collective bargaining negotiations
- Successor liability
- Employer duty to bargain over discretionary discipline prior to execution of a collective bargaining agreement (CBA)
- Dues check-off surviving expiration of a CBA
- Unfair labor practice remedies
Many employers will be interested to note that GC Memo 18-02
expressly rescinds the prior General
Counsel guidance (GC Memorandum 15-04) concerning employer work rules. Under the now rescinded guidance, the NLRB
held a number of ordinary handbook policies to be in violation of federal labor
law, including those requiring confidentiality in internal investigations,
prohibiting workplace cameras or recordings, and mandating a certain level of
workplace civility. The rescinded
memorandum greatly expanded the types of facially neutral policies and work
rules that the General Counsel’s office used as a basis to issue unfair labor
practice complaints.
The new GC Memo 18-02 also terminates policy initiatives of
the prior administration, including those that: (1) extended to other
electronic systems the Purple
Communications decision allowing the use of employer-owned email systems for union organizing;
(2) narrowed employer authority to communicate with employees during a union
organizing campaign; (3) argued misclassification of employees as independent
contractors was, in and of itself, a violation of the NLRA; and (4) expanded
application of Weingarten to non-union settings.
As chief-prosecutor for the NLRB, the new General Counsel
does not have decision-making authority – that authority remains with the
five-member board. However, the General
Counsel’s office shapes the national labor policy approach, and GC Memo 18-02 is further confirmation of what
can be expected in terms of significant
changes to the ways in which the NLRB will analyze and pursue many issues
important to employers.
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