Labor & Employment Law Daily New GC memo lays out what’s out, what’s targeted under Trump’s Labor Board
Wednesday, December 6, 2017

New GC memo lays out what’s out, what’s targeted under Trump’s Labor Board

On December 1, new NLRB General Counsel Peter B. Robb issued his first GC Memorandum (GC 18-02) signaling the direction in which he plans to take the Board. Not surprisingly, he’s not headed in the same direction as the Obama-era Board.

What’s likely to get a second, scrutinizing look? Joint employer status, for starters, as well as Section 7 rights vs. employer handbooks (think cameras, confidentiality, “disrespectful” conduct, etc., including outgoing Chairman Philip Miscimarra’s proposed new Section 7 standard—one that weighs the potential adverse impact of a given work rule on NLRA-protected activity against an employer’s legitimate justifications for maintaining the rule). Also targeted are employee rights to use employer’s email (Purple Communications), the expansion of Weingarten protections, and employee conduct (typically racist) that the Board has found protected while other agencies, notably the EEOC, would not.

What’s out. First, Robb is rescinding the following memoranda:

GC 17-01(General Counsel’s Report on the Statutory Rights of University Faculty And Students in the Unfair Labor Practice Context). During the Obama administration, the Board issued several decisions redefining how putative employees at institutions of higher education are to be treated under the NLRA, but those rulings were in the context of representation cases. Robb’s predecessor, Richard F. Griffin, Jr., offered guidance to universities, their employees, and unions on how his office will apply these decisions in the unfair labor practice context (GC Memorandum 17-01).

GC 16-03 (Seeking Board Reconsideration of the Levitz Framework). Employers should only be allowed to withdraw recognition from a union after petitioning for an election, Griffin had argued, urging the NLRB to scrap its “problematic” Levitz Furniture framework for determining whether an incumbent union has lost majority support and instead impose an election requirement as the sole means of making the requisite showing. The NLRB’s 2001 decision in Levitz Furniture Co. of the Pacific barred an employer from withdrawing recognition from an incumbent union unless it was able to objectively show by a preponderance of the evidence that the union had lost the support of a majority of bargaining unit employees.

GC 15-04 (Report of the General Counsel Concerning Employer Rules). Noting that the law does not allow even well-intentioned rules that would inhibit employees from engaging in activities protected by the NLRA, Griffin issued GC Memorandum 15-04 detailing the Board’s evolving views on lawful and unlawful employee handbook rules, which expanded the Board’s interpretation of whether employees would reasonably construe employer rules to prohibit Section 7 activity.

GC 13-02 (Inclusion of Front Pay in Board Settlements). In its December 2012 Latino Express, Inc. ruling, the NLRB adopted the acting general counsel’s proposed remedies requiring employers to reimburse the excess income taxes paid out by an employee as a result of having received a lump-sum backpay award and the reporting of that backpay allocation to the Social Security Administration. The Board reasoned that such a remedy would better serve the remedial goals of the NLRA by ensuring that employees are truly made whole for discrimination they suffered as a result of an employer’s violation of the Act. NLRB Acting General Counsel Lafe Solomon then announced that his office would permit the inclusion of front pay in board settlement agreements (GC Memorandum 13-02).

GC 12-01 (Guideline Memorandum Concerning Collyer Deferral). Solomon issued Memorandum GC 12-01 to revise the Board’s then-current policy of deferring certain charges to arbitration due to concerns about delays in processing grievances through parties’ contractual grievance-arbitration procedures. The suggested revisions would apply to cases in which it is alleged that an employer has discriminated against, or discharged, employees based on their union activities. In such cases, if it appears likely that the case will not be resolved or arbitrated within a year, Solomon suggested that the Board should decide the case on the merits, rather than defer it. He also proposed applying the new policy to cases that have already been deferred for more than one year.

GC 11-04 (Default Language). Solomon issued Memorandum GC 11-04, which detailed an expansion of the use of default language to include all informal settlement agreements and all compliance settlement agreements, and how regions were to routinely include this default language in these documents.

OM 17-02 (Model Brief Regarding Intermittent and Partial Strikes) (Regions should submit cases involving intermittent strikes to Advice). Pointing out that employees looking to improve their working conditions were deploying new tactics, including the use of intermittent or short-term strikes, the GC’s office wanted the NLRB to “clarify”—and “modify”—current Board law on intermittent and partial strikes. In an Operations Memorandum (OM 17-02), the GC’s office suggested that current Board law doesn’t match up readily to these newest forms of labor activism (think Fight for 15, Walmart walkouts), noting that “the board’s present test for determining whether multiple short-term strikes are protected is difficult to apply to these situations.”

Not going here either. The following initiatives set out in Advice memoranda are no longer in effect, Robb’s memo stated:

  • seeking to extend Purple Communications to other electronic systems (Internet, phones, instant messaging) if employees use those regularly in the course of their work;
  • seeking to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they select union representation;
  • seeking to overturn Oil Capitol and put the burden of proof on employers to demonstrate that a union salt would not have remained with the employer for the duration of the claimed backpay period;
  • 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 the Division of Advice any case where there is evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity);
  • seeking to overturn IBM and apply Weingarten in nonunion settings.

Significant legal issues for which there might be an “alternative analysis.” Cases that involve significant legal issues should be submitted to Advice, said Robb, noting that these would include cases over the last eight years under Obama that overruled precedent and involved one or more dissents, among others. As examples of Board decisions that might support issuance of a complaint, but where the GC’s office under Trump also might want to provide the Board with an “alternative analysis,” the memo listed:

  • Joint employer determinations
    • Finding joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees (Browning-Ferris Industries of California, Inc., 2015)
  • Concerted activity for mutual aid and protection
    • Finding conduct was for mutual aid and protection where only one employee had an immediate stake in the outcome (an individual sexual harassment claim) (Fresh & Easy Neighborhood Market, 2014)
    • Finding no loss of protection despite obscene, vulgar, or other highly inappropriate conduct (Pier Sixty, LLC, 2015)
  • Common employer handbook rules found unlawful
    • Rules prohibiting “disrespectful” conduct
    • Rules prohibiting use of employer trademarks and logos
    • No camera/recording rules (Rio-All Suites Hotel & Casino, 2015; Whole Foods Market, 2015)
    • Rules requiring employees to maintain the confidentiality of workplace investigations
    • Other rules where the outcome would be different if Miscimarra’s proposed test was applied (see dissent in William Beaumont Hospital, 2016)
  • Purple Communications
    • Finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities
  • Work stoppages under Quietflex
    • Finding work stoppages protected under the Quietflex standard in a variety of contexts (including the retail sales floor) and giving heavier weight to those factors that tend to favor protection
  • Off-duty employee access to property
    • Applying Republic Aviation to picketing by off-duty employees (Capital Medical Center, 2016), equating picketing with handbilling despite greater impact on legitimate employer interest (including patient care concerns)
    • Finding that access must be permitted unless employees are excluded for all purposes, including where supervisor expressly authorized access (Piedmont Gardens, 2014)
  • Conflicts with other statutory requirements
    • Finding racist comments by picketers protected under Clear Pine Mouldings because they were not direct threats (Cooper Tire & Rubber Co., 2016)
    • Finding social media postings protected even though employee’s conduct could violate EEO principles (Pier Sixty, LLC)
  • Weingarten rights
    • Expanding the range of permissible conduct by union representatives in Weingarten interviews
    • Application of Weingarten in the drug testing context (Manhattan Beer Distributors, 2015)
  • Disparate treatment of represented employees during contract negotiations
    • Finding unlawful the failure to give a companywide wage increase to newly represented employees during initial contract bargaining, even though there was no regular, established annual increase and the employer was concerned that it would violate the Act if it unilaterally provided the increase to represented employees (Arc Bridges, Inc., 2015)
  • Joint Employer
    • Finding joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees (Browning-Ferris Industries of California, Inc., d/b/a BFI Newby Island Recyclery 2015)

In addition, the memo took aim at the Obama Board’s approach to perfectly clear successorship, unlawful unilateral changes after contract expiration, the duty to provide witness statements to the union, dues checkoff surviving after contract expiration, and several approaches to remedies.

Finally, Robb stressed that under him, the GC’s approach will be to base decisions on extant law. “Cases should be processed and complaints issued according to existing law. No new theories will be presented on cases that have been fully briefed to the Board in order to avoid delay,” he concluded.

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