NLRB’s New General Counsel Takes First Big Step In Pushing Forward His Agenda

Topics: Union-Management Relations

On Friday, December 1, Peter Robb, the new NLRB General Counsel, published OFFICE OF THE GENERAL COUNSEL MEMORANDUM GC 18-02.  The memo is available online at the NLRB’s website www.nlrb.gov and can be accessed directly by clicking here.

Many of us on the management side have been wondering and speculating as to what changes the new NLRB will be making now that Trump’s appointees have been confirmed.  Unlike many other agencies, at the NLRB, its General Counsel has the primary authority to set policy because his/her office acts as the prosecutor for unfair labor practice changes and has broad discretion to determine what charges will be prosecuted. 

GC Memorandum 18-02 does not set any specific rules or offer any express views of Mr. Robb on the actual issues.  However, it offers some guidelines and indications about Mr. Robb’s initial thinking.  Because the issues covered include matters related to both union and non-union employers, we advise all California employers to read the Memorandum in its entirety.  Nevertheless, below is a brief summary of some of the key actions taken in conjunction with the Memorandum.

Rescission of Memoranda from Obama-Era General Counsel

• GC 11-04 (Default Language)
• GC 12-01 (Memorandum Concerning Collyer Deferral)
• GC 13-02 (Allowing the Inclusion of Front Pay in Board Settlements)
• GC 15-04 (Report of the GC Concerning Employer Rules)
• GC 16-03 (Seeking Board Reconsideration of the Levitz Framework Re Withdrawal of Union Recognition)
• GC 17-01 (General Counsel’s Report on the Statutory Rights of University Faculty  And Students in the Unfair Labor Practice Context)
• OM 17-02 (Model Brief Regarding Intermittent and Partial Strikes)

Mr. Robb’s GC Memorandum 18-02 rescinded each of these prior GC memoranda, which had been issued by General Counsel working under the Obama administration.  By rescinding these documents, Mr. Robb is indicating that he believes that these no longer reflect the views of the agency or its prosecuting arm, or at a minimum that the GC’s office is going to review these issues closely to determine whether things need to change.  Perhaps the most significant of these moves to non-union employers is the rescission of GC 15-04 concerning employer rules.  The NLRB has spent significant resources in the last several years investigating and prosecuting claims based on Memorandum 15-04 and the cases interpreting it in an effort to restrict non-union employers from regulating a variety of types of employee conduct (social media postings, offensive behavior in the workplace, protection of confidential information) on the stated ground that these traditional employer policies violate Section 7 of the NLRA because they “could be” interpreted to restrict Section 7 concerted activity rights.  The rescission of GC Memorandum 15-04 is a strong signal that the Board is going to materially modify its position and practices in this area -- a move that will be welcome for non-union employers. 

Rescission of Advice Memoranda

In addition, Friday’s GC Memorandum 18-02 rescinded a number of memoranda issued by the Board’s Division of Advice during the Obama Board, including, but not limited to:

• the memorandum seeking to extend the Purple Communications NLRB decision beyond email to other electronic systems giving unions access to Employer phones and instant messaging services;
• the memorandum stating that an employer’s misclassification of employees as independent contractors is by itself a violation of the National Labor Relations Act; and
• the memorandum seeking to overturn the Board’s IBM decision and apply Weingarten rights in non-union settings.

Mandatory Submissions to Advice

Finally, and perhaps most importantly, Friday’s GC Memorandum 18-02 requires all cases that involve significant legal issues to be submitted to the Division of Advice.  The Division of Advice is an arm of the General Counsel’s office that provides guidance to the Board’s regional offices on matters involving difficult or novel legal issues.  The Memorandum stated that the cases that should be submitted include (i) any cases decided during the Obama Board that had a dissenting opinion or that overruled prior precedent, (ii) any cases that involve issues that have not previously been decided by the Board, and (iii) any other cases that the Regions believe will be of importance to the General Counsel’s office.  The Memorandum more specifically identified the following as just some of the issues where Advice should be consulted:

• Cases involving issues related to concerted activity for mutual aid and protection where only one employee was involved or where the protected activity constitutes obscene, vulgar or related conduct;
• Cases involving employer rules related to (i) disrespectful conduct, (ii) the prohibition of use of employer trademarks or logos, (iii) no camera/recording rules, (iv) confidentiality of workplace investigations, (v) and other rules that might be covered by the dissenting opinion of Chairman Miscimarra in the William Beaumont Hospital case (363 NLRB 162);
• Cases involving the right of employees to use the employer’s email system to engage in section 7 activities;
• Cases involving off duty employee access to property related to picketing and handbilling;
• Cases involving social media postings that could violate EEO policies or principles;
• Cases that implicated certain aspects of Weingarten;
• Cases involving issues of joint employment based on indirect or potential control over the terms and conditions of employees;
• Cases involving certain issues related to successorship (when one business takes over another union business);
• Cases involving the duty to bargain over discretionary discipline when the parties have yet to agree on an initial collective bargaining agreement;
• Cases involving the employer’s right/duty to make or not make unilateral changes after contract expiration where changes were similar to employer’s earlier practice; and
• Cases involving the issue of whether dues check off obligations survive the expiration of CBAs.

It is important to note that Mr. Robb has not articulated any express position on any issue yet.  However the breadth of this GC Memorandum indicates that we should expect sweeping changes from the Board and what it is going to prosecute going forward.  One thing that was interestingly omitted from the GC Memorandum was any mention of micro units or Specialty Healthcare.  Its omission seems to indicate that Mr. Robb does not believe that this is an issue that his office will get involved in directly and that he does not feel that the Specialty Healthcare opinion needs to be reconsidered/modified. 

Changes are on the way and we will continue to keep you updated on important developments with the NLRB that have significant ramifications for California employers.