By Timothy M. Hoppe and Jack Lambremont

Seyfarth Synopsis: In some early spring cleaning, last week the NLRB’s Office of General Counsel released 43 memos authored by its Division of Advice meant to provide guidance to regional offices on pending charges. Here are some of the highlights that employers should not miss.

Either the General Counsel’s office has started spring cleaning a little early or it is working hard to clear its plate before spring break. Either way, last week its Division of Advice released 43 advice memoranda. The cache weighs in on a number of cogent issues, including Google’s decision to fire an employee for suggesting that men are more suited for the tech industry than women, and the lawfulness of a union’s shadow Facebook group meant to harass dissenting union members.

An arm of the General Counsel’s office, the Division of Advice provides guidance to the regional offices on how to approach difficult or novel legal issues. The General Counsel has discretion to release the memos the Division prepares after cases are closed. Although they are not binding on the Board, the memos can provide insight into the General Counsel’s priorities and approach to charges.

Here are a few highlights from last week’s wave of releases.

Google Lawfully Discharged an Employee for Violating Its Anti-Harassment and Discrimination Policies

In a memorandum issued on January 16, 2018, the Division of Advice weighed-in on whether Google violated the NLRA when it terminated an employee for drafting and circulating a document containing a number of statements suggesting that men were more suited for the tech industry than women.

After attending a summit on Google’s diversity programs, the employee authored a critique of the company’s inclusion initiatives, which included statements attempting to rationalize the gender gap in the tech industry and at Google using gender stereotypes. The document also accused Google of not tolerating certain types of political views. The employee posted versions of the document on a couple of internal, company-sponsored discussion groups. A number of coworkers complained about the postings and, according to the advice memo, a few employment candidates withdrew from consideration due to the posts.

After an investigation, Google concluded that the employee violated Google’s anti-harassment and discrimination policies, and discharged the employee. In explaining its rational to the employee, Google stated that it based the decision solely on the employee’s comments regarding gender stereotypes. It was not based in any way on the employee’s discussion of training programs or Google’s treatment of differing political views. Google also sent a company-wide email echoing these points.

The Division of Advice acknowledged that much of the content of the employee’s memorandum likely constituted protected, concerted activity (such as criticisms about Google’s culture and training). Nevertheless, the discharge did not violate the Act. The memo noted that the Act does not protect conduct creating a hostile work environment, or constituting racial or sexual discrimination. The employee’s comments about gender stereotypes constituted this type of unprotected conduct. The Division also concluded that Google only terminated the employee’s employment for the unprotected conduct. The company’s termination memo and company-wide email were enough to demonstrate that Google did not consider the protected portions of the employee’s posts. Accordingly, the Division of Advice advised the region to dismiss the charge.

Employee Benefits PowerPoints Helped Create a Binding Contract Term

The Division of Advice concluded in a November 7, 2017 memo that a charge should issue against an employer for failing to bargain before rescinding an Employee Stock Purchase Plan (ESPP) for union members.

The memo concerns union employees at a chemical facility in Kentucky that employed both union and non-union workers. The ESPP was not an express term in the union’s CBA. However, in late 2016, the employer gave a number of power point presentations to both union and non-union employees indicating that all employees were eligible for the benefit. The union and employer also discussed the ESPP on a few occasions, and the employer held it out to the union as a potential offset to its proposed health insurance premium increases. Nevertheless, shortly before opening enrollment to the ESPP, the employer notified the union that bargaining unit employees were not eligible for the benefit.

The Division of Advice concluded that the employer’s “initial announcements of the ESPP to unit employees and reinforcing representations to [u]nion officials established a term and condition of employment.” Although the employer rescinded the purported contract term before it was implemented, the Division concluded that the employer’s statements alone had “established the ESPP as an employment term the unit employees reasonably expected.”

Franchisor Not Liable for Social Media Policies Adopted By Franchisees

On September 21, 2017, the Division of Advice determined that Subway could not be liable for its Franchisees’ use of a corporate social media policy Subway authored because Subway did not require the franchisees to adopt it.

Subway created the social media policy and made it available to its 26,000 franchisees through the company’s internet portal. On a few occasions, the company encouraged the franchisees to use the policy, but the company never required them to adopt the policy.

Phoenix’s Region 28 determined that the Subway policy was overly broad and discriminatory, and sought advice on whether it could hold Subway liable for the franchisees’ violations. The Division did not consider the policy’s legality (for a summary of the Board’s new, more moderate position on handbook provisions click here); it only considered whether a franchiser could be liable for its franchisees’ use of the policy.

The Division noted that companies may be liable for other employers’ violations of the Act if the company directs other employers with whom it has business dealings to engage in the unlawful conduct. Here, however, the Division concluded that it could not prove that Subway directed its franchisees to adopt the social media policy. Subway only recommend, encouraged, and asked the franchisees to consider adopting it. It did not track which franchisees had downloaded the policy, did not punish franchisees for not adopting the policy, and only a couple hundred franchisees actually adopted it. Accordingly, the Division recommended dismissing the charge against Subway, provided it was not first withdrawn.

Union’s Shadow Facebook Group Violated the NLRA

A shadow Facebook group started by Teamsters Local 610 violated the NLRA, according to an advice memo issued on September 21, 2017.

The Facebook group was created by union leadership during contract negotiations in response to a union member’s complaints about the composition of the union’s bargaining team, and terms the team was negotiating for some union members. The union excluded the member and his supporters from the Facebook group. It also posted a number of derogatory statements directed at the member to the Facebook page.

The Division of Advice concluded that the union’s Facebook group violated the Act for two reasons. First, the union created it to restrain and coerce dissenting members to refrain from exercising protected Section 7 activities. As the Division noted, although many of the comments may have been trivial and immature, they were “nonetheless deliberate and otherwise unprovoked acts made in direct response to the [members’] protected activity.” Thus, they were meant to exclude, ostracize, and humiliate the members. The Facebook group also violated the Act because the union unlawfully denied the dissenting members access to the group based solely on their disagreement with the union. The Division equated this to restricting access to a union bulletin board, which violated employees’ Section 8(b)(1)(A) rights.

As a remedy, the Division of Advice recommended requiring the union to (1) remove all offensive posts from the Facebook page; (2) pin a notice to the top of the page as a notice of improper conduct; and (3) invite all union members to join the Facebook group.

 

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By Andrew Cockroft

Seyfarth Synopsis: On Monday, February 5, 2018, the U.S. Chamber of Commerce’s lawsuit challenging the City of Seattle’s ordinance allowing independent-contractor drivers to engage in collective bargaining was before the U.S. Court of Appeals for the Ninth Circuit for oral argument. The outcome of the litigation could have a far reaching impact on the growth of the “gig-economy.”

In December 2015, the City of Seattle became the first city in the United States to pass an ordinance creating collective-bargaining rights for “taxi-cab, flat-rate vehicle and transportation network company drivers,” that would allow such drivers to bargain with their respective companies concerning issues such as payment to drivers, vehicle safety, and other matters of mutual interest. Seyfarth has previously covered similar state and local proposals which sought to provide collective bargaining rights to such workers.

The Chamber’s Lawsuit: Antitrust and NLRA Preemption

Seattle’s ordinance was immediately questioned by business community groups. In March 2016, the U.S. Chamber of Commerce filed suit against the city seeking to enjoin the new law. The Chamber’s complaint rests on two key claims:

  • First, the ordinance violates the Sherman Antitrust Act because it permits independent-contractors to collude on the prices they will accept for their services and that such activities are per se illegal.
  • Second, the ordinance is preempted by the National Labor Relations Act because it grants collective bargaining rights to independent-contractors even though Congress intended them to be left entirely unregulated in their labor activity and, furthermore, because these drivers are “arguably employees,” the ordinance encroaches on uniform labor law that is properly adjudicated before the NLRB.

Ultimately, the Chamber’s case attempts to put the ordinance, and others like it, in a double-bind: if the drivers are independent-contractors, then the ordinance violates antitrust law by allowing such contractors to collude against the companies they work with, but if they are employees the ordinance is preempted by the NLRA because the city seeks to create municipal bargaining rights where the NLRB is the only agency authorized to make such determinations.

The District Court Grants the City’s Motion to Dismiss

The city moved to dismiss and, in August 2017, the District Court granted their motion. Specifically, the Court rejected the Chamber’s antitrust claim, holding instead that the ordinance was immune from federal antitrust suits. The Court reasoned that the ordinance was authorized by Washington statutes that allow for regulating “for-hire transportations services” in order to promote safe and reliable service. The Court rejected the Chamber’s argument that granting drivers rights to collectively bargain was not related to promotion of safety or reliability, but rather payment for services. The city persuaded the Court that collective bargaining rights promoted safety and reliability in for-hire transportation because, for example, “in other parts of the transportation industry  . . . collective negotiation processes have reduced accidents and improved driver and vehicle safety performance.”

The Court also dismissed the Chamber’s NLRA preemption claim on two basis. First, because the Chamber has alleged that the drivers covered by the ordinance are independent-contractors and are not subject to the NLRA, they could not argue that the drivers where “arguably protected” under the NLRA, a necessary pre-condition of preemption. Second, the Court found that because the NLRA did not explicitly exclude independent-contractors from unionization, it was left up to states and municipalities to determine if such workers could be granted collective bargaining rights. As such the Court found “that Congress was indifferent to the labor rights of independent contractors  . . . because their disputes were thought to be of insufficient magnitude to affect commerce.”

Ninth Circuit Appeal and Oral Argument

The Chamber appealed the District Court’s dismissal to the Ninth Circuit. During oral argument on February 5, 2018, the audio of which is available here, the parties mostly focused on the antitrust aspect of the case, particularly whether Washington State statutes authorized the ordinance and whether permitting bargaining over compensation was sufficiently related to safety and reliability in the transportation industry.

The panel seemed skeptical of the city’s position, with Judge Milan Smith even stating, “You can regulate [the for-hire transportation industry] in terms of the drivers having to get a lube job, they have to get the car washed, they have to stop and help people, that’s all cool. But that has nothing to do with fixing rates, that’s what I’m struggling with.”

While very little of the argument focused on NLRA preemption, when given the opportunity counsel for the Chamber took issue with the District Court’s holding that the Chamber’s own opinion on whether the drivers were, in fact, employees was determinative of preemption. Rather, he explained the issue was whether the drivers where “arguably” employees and given that the issue is currently in front of the NLRB, three District Courts in California had deemed them employees, and that the Teamsters Union are advocating on behalf of such drivers, it is difficult to state they are not “arguably” employees.

Seyfarth will be watching this case very closely and encourages employers to do the same. A decision in favor of the Chamber could provide a road-map for preventing and challenging similar ordinances in other large cities. However, if the Ninth Circuit affirms the District Court’s decision, one can except to see labor organizations push even harder to organizing rights at the municipal level.

By:  Jaclyn W Hamlin

Seyfarth Synopsis: The business community has another opportunity to convince the NLRB to rescind the expedited election rules that have been wreaking havoc on workplaces since 2014, after the agency extended the public comment period to March 19, 2018.

In the fast-paced, ever-changing world of NLRB precedent and procedures, April of 2015 seems like an eternity ago.  Nearly three years ago now, the Board under President Obama implemented new expedited election rules which overhauled the Board’s existing representation case procedures.  The rules, which many employers came to call the “ambush” or “quickie” election rules, shortened the time for pre-election hearings; required rapid filing of a pre-hearing position statement and preliminary voter list (and deemed any issues not raised by the employer in the position statement waived); vested more discretion in regional directors, including giving the regional director the authority to determine whether parties could file post-hearing briefs; imposed new Excelsior list requirements including an earlier submission date; and required earlier elections with limited to no right to NLRB review of post-election disputes.  Unsurprisingly, employers were alarmed by the new rules, which placed management on the defensive with only a short period of time to make the company’s case to employees considering unionization.

With the change in Presidential Administrations, and accompanying changes in the makeup of the Board, NLRB-watchers have already seen more business-friendly policies begin to fall into place – and there is a chance that representation case procedures could be among them.  In December of 2017, the Board published a notice in the Federal Register asking for public comment on three questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations?  If the Board should make changes to the prior Representation Election Regulations, what shoul be changed?

The comment period was originally set to expire on Monday, February 12, 2018, but in late January the Board issued a press release informing the public that “to aid in the consideration of the issues involving the 2014 Election Rule,” the Board would extend the public comment period through Monday, March 19, 2018.  The Board did not explain its reasoning in extending the public comment period, but it is possible that it concluded that more comments would help it to reach the most fully-informed decision about the fate of representation case procedures.

With this extension, the business community has another chance to make its views known to the Board about the fairest and most efficient way to conduct union representation elections.  The public comment period is an opportunity to draw the Board’s attention to the real impact that representation case procedures have on employers of all sizes and industries – before the Board turns its attention to other matters and the opportunity to regain sanity in union elections is relegated to the back-burner.

By: Nick Geannacopulos, Esq. & Jinouth Santos Vasquez, Esq.

Synopsis: Ralphs Grocery v. Victory Consultants, 17 Cal. App. 5th 245 (2017), gives some solace to private property store owners. The Silver lining of the Victory Consultants grocery store decision—petitioners and signature gatherers have no free speech rights on private property, including in store entrances, when engaging in signature gathering for election issues.

Background

In 2012, the California Supreme Court handed unions a significant victory when it restricted the availability of injunctions for picketing by labor unions on private property. Ralphs Grocery Co. v. UFCW Local 8, 55 Cal. 4th 1083 (2012). The court reasoned that although the property around the store was private property, the Moscone Act (California Code of Civil Procedure Section 527.3) and California Labor Code Section 1138.1, limited the authority of courts to issue an injunction in a “labor dispute.” The Court found, however, that non-labor conduct was subject to trespass laws, reasoning that a private sidewalk in front of a customer entrance to a retail store in a small shopping center is not a public forum under the doctrine of Robins v. Pruneyard Shopping Center, 23 Cal 3d 899 (1979). But the Ralphs court did not directly address the issue of whether a non-labor petitioner has a constitutional free speech right to engage in petition activity on private property. The court also did not address what activity is allowed at a store entrance. In Victory Consultants, the California Court of Appeal answered both questions in favor of property owners.

The case

In Victory Consultants, a group engaging in petition gathering activities in front of two Ralphs grocery store entrances were informed that their activity constituted unlawful trespass. After asking the petitioner to leave and failing to get law enforcement to remove the petitioner, Ralphs pursued a case for trespass and sought injunctive relief. Ralphs named the individual on the property as well as the petition gathering company he allegedly worked for as Defendants. The petition gathering company claimed the actual petitioner was not their employee but rather, an independent contractor, and therefore the company should not be liable for his alleged trespass. Before the hearing on the injunction, the company filed an anti-Slapp motion arguing that the complaint arose from acts protected by the United States and California Constitutions and the store was not likely to prevail on the merits. The California Constitution provides that “every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Article 1, Section 2 Cal Const. The store argued that the free speech protections were not available because the conduct took place on private property. The trial court granted the anti-Slapp motion, finding that none of the actual petitioners were agents or employees of the company.

The Court of Appeal, relying on Lloyd v Tanner, 407 U.S. 551 (1972), held that free speech rights do not apply to private forums such as a retail store if it is not a Pruneyard public forum. The court held, “where the complaint includes allegations that the challenged conduct occurred on private property which would render the conduct unprotected for anti-Slapp purposes we must consider those allegations as part of our first prong analysis.” The court quoting Lloyd noted that private property owners have a right to exclude persons from their property if there are no common areas at the site that allow people to congregate in a leisurely fashion. The court found:

  • (1) Areas immediately adjacent to entrances of individual stores typically lack seating and are not designed for relaxation;
  • (2) These areas exist solely to let people in the store and to exit the store; and
  • (3) Soliciting signatures for petitions poses a significantly greater risk of interfering with normal business operations when those activities are conducted near the entrances and exits of stores.

Therefore, within a shopping mall or center, the individual store entrances, at least as typically configured, are not public forums under Pruneyard and therefore are off limits for petition gathering activities.

Practical significance

Private property rights seemingly trump the right of free speech in California when it comes to non-Pruneyard activities even when those activities involve core political rights. In particular, the free speech right is trumped by private property rights.

Previously the courts concentrated on the size of the retail mall, but the Victory Consultants case concentrated on the exact location of the activity as opposed to the size of the mall, finding that the store entrance is private property and not subject to trespass. That of course leaves open the areas away from the store entrance for another day.

Legal significance

The special rights previously bestowed on labor activities by the California Supreme Court in prior Ralphs cases become more suspect after Victory. In effect, Victory Consultants makes clear that petition gathering activity on store entrances is off limits because store entrances are not open to the public for purposes of congregating.

By: Robert A. Fisher & Skelly Harper

Seyfarth Synopsis: A 2016 decision of the National Labor Relations Board (“Board”) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (“NLRA”) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board’s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.

In a landmark ruling, Columbia University, 364 NLRB No. 90 (2016), the Obama Board reversed prior precedent and held that graduate-student assistants at Columbia University were employees and therefore could vote on whether to form a union. After the Union prevailed at the election in December 2016, Columbia filed objections and requested a rerun election. In a decision issued in December 2017, the current Board rejected those objections and certified the Union as the exclusive bargaining representative of the graduate-student assistants. 365 NLRB No. 136.

Teeing up the issue of whether graduate-student assistants are employees under the NLRA, Columbia has now refused to bargain with the Union. There is no right to a direct appeal of Board decisions in representation cases, and the only way for the University to obtain review of the earlier election determination is by refusing to bargain with the Union. Presumably, the Union will file an unfair labor practice charge against Columbia that will then lead to an adverse Board decision against Columbia. At that point, the University would be able to ask a federal Court of Appeals to assess whether the Board correctly decided the employee issue in the first instance.

While it is not the Board’s practice to review representation cases in the context of a refusal to bargain, there is reason to believe that the current Board may revisit whether graduate-student assistants are employees under the NLRA. Both Columbia decisions included vigorous dissents by a Republican Board member. In addition, in a separate December 2017 decision in a case involving Harvard University, another Republican Board member noted his view that Board precedent on the employee-status of students warrants reconsideration. Indeed, the Board had previously gone back and forth on the issue. In Brown University, 342 NLRB 483 (2004), the Board held that graduate-student assistants were not employees. Just two years earlier, in New York University, 332 NLRB 1205 (2000), the Board had held that graduate-student assistants were employees under the NLRA.

Regardless of whether the Columbia University decision is revisited through the appeals process or by the Board itself, it is unlikely that the 2016 decision will be the last word on the issue. The final outcome will most certainly impact efforts by unions to organize graduate-student assistants and other students such as residence assistants. The final decision also may impact the cases in which certain college athletes, usually scholarship athletes, are claiming employee status for purposes of state and federal wage-hour laws.

  By: Kyllan B. Kershaw, Esq.

Seyfarth Synopsis: Union organizers are increasingly embracing the #MeToo movement as an organizing tool, claiming that unions are the key to eliminating gender inequity and sexual harassment in the workplace.

Employers across the country are examining their corporate culture and taking steps to avoid being the next sexual harassment headline in response to the #MeToo movement. While employers already have plenty of reason to eliminate sexual harassment in the workplace, the #MeToo movement has also created an uptick in unions claiming that joining their ranks is the key to preventing sexual harassment.

Female union organizers are openly embracing this strategy, publicly forecasting plans to collaborate with the Women’s March and use political action committees to promote unions aimed at protecting women. Given the current focus on sexual harassment, employers can also expect to see unions increasingly target companies with high-profile sexual-harassment or gender-discrimination claims, including employers facing collective actions.

Female union leaders are not only using #MeToo as an organizing tool but to call out organized labor on its own gender issues. For example, in a recent article entitled “What #MeToo Can Teach the Labor Movement,” union organizer Jane McAlevey bemoans the “sexist male leadership inside the labor movement” and calls on women to embrace the idea of a female-led labor movement focused on obtaining free childcare, schedule control, and family leave, including in areas such as education and healthcare where women employees comprise the majority.

Employers should expect that the #MeToo movement’s substantial momentum will spur increased organizing efforts aimed specifically at women and quite possibly result in a significant shakeup of union leadership or the formation of new female-focused unions. As such, female-driven union campaigns are likely on the rise, creating unique issues for employers and an increased need for well-trained female members of management who can persuasively assure female employees that a union is not necessary to stopping harassment, achieving pay equity, and otherwise improving the workplace for women.

Seyfarth lawyers have extensive experience devising strategies to avoid and respond to union campaigns targeted towards women, including those involving claims of sexual harassment or raising issues of gender equity. Please do not hesitate to reach out to any Seyfarth lawyer for more information.

 

By: Ashley Laken, Esq. & Brian Stolzenbach, Esq.

Seyfarth Synopsis: Although many employers may think they can let their guard down a little bit when it comes to the NLRB under the Trump Administration, history suggests otherwise. During the last Republican Administration, labor unions often decided to wage their battles outside the NLRB, using tactics like the “corporate campaign.” Although corporate campaigns have been around for a long time and continued even during the Obama Administration, union corporate campaign activity during the Bush Administration suggests that employers would be well advised to implement strategies aimed at reducing their vulnerability to such campaigns and effectively responding to such campaigns in the event they become a target.

When the NLRB shifts from Democrat control to Republican control, as it has under the Trump Administration, many employers rejoice, believing that a Republican-controlled NLRB will take a more employer-friendly approach. This is almost certainly true, but employers should keep in mind that appeals to NLRB intervention are not the only ways for unions to create incredible headaches for employers.

Background on Corporate Campaigns

A corporate campaign is an attack by a union on a company or an industry with the goal of putting so much pressure on the target that it will give in to the union’s demands. Such attacks are multi-pronged and often long-running. Indeed, unions have devoted millions of dollars and multiple years to individual corporate campaigns, and such campaigns have become more sophisticated and coordinated over the years. The typical union philosophy in launching such a campaign is to cost an employer so much time and money and cause it so much disruption that it ultimately gives in to what the union wants.

A corporate campaign’s most common objective is to facilitate union organizing, often by coercing an employer into accepting a card-check agreement along with neutrality commitments (in other words, to agree to recognize the union without a formal election and to stay silent on its views regarding the unionization of its workforce). Corporate campaigns are widely known as a means of organizing workers by disorganizing companies.

In launching a corporate campaign, a union identifies and then exploits a company’s perceived vulnerabilities. Common tactics unions employ in corporate campaigns include:

  • Filing a stream of unfair labor practice charges against the company
  • Encouraging investigations of potential OSHA, wage and hour, environmental, and/or antitrust violations by the company (see our recent management alert regarding antitrust enforcement against employers here)
  • Causing union-paid organizers to get jobs within the company (known as “salting”)
  • Placing print, digital, radio, and/or TV ads attacking the company, establishing anti-company websites, and distributing anti-company materials (including emails and social media messages) to customers, shareholders, and employees
  • Introducing shareholder resolutions aimed at reducing management’s independence
  • Challenging the zoning or permitting of new company facilities
  • Alleging or implying sexual misconduct by company executives or claiming that the company does not pay its employees fairly (the #metoo and #timesup movements are likely to add more fuel to any such fire)
  • Recruiting celebrities, politicians, clergy, and other community leaders to put pressure on the company

A variety of unions have launched a multitude of corporate campaigns over the years, and they often team up with each other and pool their resources against a single company. Collectively, unions employ hundreds of professional corporate campaigners, with job titles such as “online advocacy organizer” and “strategic communications specialist.” The typical position postings for such jobs list responsibilities that include developing campaign strategies and messages, conducting online research, and executing effective media plans. Given the growing presence of Millennials in the workforce, a group that (broadly speaking) considers itself both technologically savvy and socially conscious, unions are likely to have no shortage of candidates for such positions.       

What Employers Can Do

Companies of all sizes, in all locations, and in all industries are potentially vulnerable to corporate campaigns. Of course, the larger the company, the more attractive that company may be as a target, as more employees equals more potential revenue from union dues. In reality, however, almost no relatively large company is safe from such an attack.

Given the power of the internet and the ubiquity of social media platforms such as Facebook, Snapchat, Twitter, and Instagram, the speed with which unions can launch and carry out sophisticated and well-coordinated corporate campaigns is nothing short of astounding. Employers would be well-advised to proactively develop strategies aimed at reducing their vulnerability to such campaigns and quickly and effectively responding to such campaigns. Such strategies could include:

  • Conducting OSHA, wage and hour, and antitrust compliance audits
  • Engaging in positive employee relations training and messaging
  • Conducting up-to-date anti-harassment training
  • Evaluating pay equity within the company
  • Creating an effective internal and external communication system in relation to potential and actual union activity
  • Assembling a dedicated team of inside or outside counsel to respond to filings at the NLRB, such as unfair labor practice charges and representation petitions

Seyfarth lawyers have extensive experience devising and implementing strategies designed to avoid and effectively respond to corporate campaigns. Please don’t hesitate to contact your favorite Seyfarth attorney for more information.

By: Monica Rodriguez, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December.  Click here, here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.

To many employers’ delight, the Collyer Deferral Doctrine is no longer on the NLRB’s “naughty” list thanks to GC Memorandum 18-02, which rescinded GC Memorandum 12-01.

What Is The Collyer Deferral Doctrine?

Under the Collyer Deferral doctrine, the NLRB should defer certain unfair labor practice (“ULP”) charges to an employer’s and a union’s bargained-for contractual grievance procedure if certain requirements are met. The purpose of the doctrine is to encourage the parties to resolve issues directly through their collectively-bargained dispute resolution procedures without unnecessary government intervention.

What Did GC Memorandum 12-01 Do?

In January 2012, Acting General Counsel Lafe Solomon issued General Counsel Memorandum 12-01, instructing NLRB field offices not to defer cases to arbitration where arbitration would not resolve the case within one year. This Memorandum also introduced significant changes to the NLRB’s longstanding arbitration deferral policy by imposing significant limits to the use of dispute resolution systems specifically designed by employers and unions to meet their particular needs.

For example, the Memorandum required that once a case was deferred, the Region must ascertain from the parties the status of the arbitral proceedings every ninety days and determine whether the parties are meeting their obligation to process the case and what action should be taken. Section 8(a)(1) and 8(a)(3) cases had the additional requirement that after the charge had been deferred for one year, the Region should send a “show cause” letter to all parties seeking an explanation of why deferral should not be revoked and a full investigation made. The GC Memorandum 12-01 called the Regions to revoke the parties’ agreed upon method of handling disputes, unless arbitration was imminent. Section 8(a)(5) cases were to be handled in a similar manner as Section 8(a)(3) cases if arbitration was not likely to occur in a year or had not been completed within a year, and the case implicated statutory rights or involved serious economic harm to the Charging Party.

What Does The Rescission Of GC Memorandum 12-01 Mean?

Robb’s new GC Memorandum rescinds this GC Memorandum 12-01. Rescission of this memorandum upholds basic principles of contract law and allows the parties to move within the time limits set forth in their bargained-for agreements.

 By: Bryan R. Bienias, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December.  Click here, here, here, here, here, here, here, here, here, here, here, here & here to find prior posts.

While the weather outside may be frightful (for some), the agenda recently set forth by NLRB General Counsel Robb in GC 18-02 is sure to make some employers delightful this holiday season. In this installment, we will focus on the GC’s targeting of the Obama Board’s controversial decisions imposing the duty to bargain over discipline of newly unionized employees, as well as the GC’s preservation of longstanding Board doctrines governing employer campaign communications and withdrawing recognition of unpopular unions.

Out with the Old: The End of Alan Ritchey?

As we discussed here, the Board in Total Security Management, 364 NLRB No. 106 (Aug. 26, 2016) not only reaffirmed the Board’s employer-maligned Alan Ritchey decision, which required employers to bargain over discretionary discipline issued to newly organized employees prior to execution of a first contract, but also mandated prospective make-whole relief including reinstatement and back pay for future violations.

Total Security Management went even further and held that such make-whole relief would be subject to an employer’s “for cause” affirmative defense, placing the ultimate burden of persuasion on the employer to show at the compliance phase that (1) the employee engaged in misconduct; (2) the misconduct was the reason for the suspension or discharge; and (3) that the employee would have received the same discipline regardless of any disparate treatment or reasons for leniency shown by the charging party.

With GC 18-02’s listing of Total Security Management as one Board decision that “might support issuance of complaint, but where we also might want to provide the Board with an alternative analysis,” GC Robb sends a gift-wrapped message to employers that, much like 2017, Alan Ritchey’s and Total Security Management’s days may be numbered.  However, employers should continue treading carefully when considering discipline for newly unionized employees. While the Board’s reversal of these precedents are on the agenda, they remain the law of the land.

In with the . . . Old?: Preserving the Levitz Furniture and Tri-Cast Doctrines

GC Robb’s memo also expressly rescinds former General Counsel Peter Griffin’s GC 16-03, which implored the Board to overturn the framework set forth in Levitz Furniture, 333 NLRB 717, 717 (2001), which allows employers to unilaterally withdraw recognition from a union based on objective evidence that the union has lost majority support (i.e., employee signatures).  Griffin advocated for a new rule requiring a Board-sanctioned election before an employer could lawfully withdraw recognition.  With Robb’s rescinding of GC 16-03, employers can sleep somewhat easier in the year(s) ahead knowing that the Levitz framework will remain intact and that the option for employees to quickly rid themselves of an unpopular union will not be impeded through a long and costly election process.

In addition, GC 18-02 announces Robb’s abandonment of GC Griffin’s initiative to overturn the Board’s Tri-cast doctrine regarding the legality of employer statements to employees during organizing campaigns.  In Tri-Cast, 274 NLRB 377 (1985), the Board held that an employer could lawfully inform employees during a union campaign that they will not be able to discuss matters directly with management if they vote for the union and that such statements could not reasonably be characterized as retaliatory threats.

While the Obama Board had indicated its willingness to eventually overturn Tri-Cast, GC 18-02 effectively ensures that the current Board will maintain the status quo in the new year.

Should you have any questions about GC 18-02 or any labor relations issue, please contact the author, your Seyfarth attorney, or any member of the Labor & Employee Relations Team.

  By: Howard M. Wexler, Esq. and Skelly Harper, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memorandum containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here, here, here, here, here, here, here, here, here, here, here, & here to find prior posts.

In GC Memo 18-02, the new General Counsel announced that his office will try and “remedy” the approach to remedies taken during the Obama presidency. The GC may seek to provide the Board with “alternative analysis” in two Obama Board decisions and has rescinded several initiatives of the prior GC.

Approach to Settlements. Effectively immediately, the GC has reversed course on two issues related to settlements.  He has rescinded Memorandum GC 13-02, which allowed front pay to be part of Board settlements.  Previously, front pay could only be included in “non-Board” side letters.  Perhaps more importantly, he put an end to the requirement set forth in Memorandum GC 11-04, which required the inclusion of certain default language in all informal settlement agreements and all compliance settlement agreements. That change should allow charged parties to reach reasonable settlements more easily.

Interim Employment Expenses. The first Obama Board decision addressed by the GC concerns the controversial Board’s backpay formula set forth in King Soopers, 364 NLRB No. 93 (2016). Previously, those who were unable to find interim employment received no reimbursement for their reasonable search-for-work and interim expenses. The Obama Board found that this was “inadequate to fulfill its fundamental charge to make victims whole following an unlawful termination.” As such, King Soopers held that the Board would compensate employees for reasonable search-for-work and interim employment expenses, even when interim earnings were nonexistent or less than those expenses.

Recoupment of Union Dues. The GC also highlighted the approach to union dues set forth in Alamo Rent-a-Car, 362 NLRB No. 135 (2015). In that case, the Obama Board held that an employer found guilty of violating the Act must pay dues owed the union from its own funds, without recouping the amount from its employees and with interest. This represented a departure from Board precedent, which had allowed employers to recoup from employees any dues that the employer had to pay the union.

Backpay for Salts. Finally, the new GC rescinded an initiative of the prior GC related to salts. During the Obama presidency, the prior GC had an initiative to overturn the burden of proof set forth in Oil Capital  349 NLRB 1348 (2007), and require employers to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period.  In Oil Capital, which the GC will not seek to overturn, the Board eliminated the presumption of “indefinite employment” and required that the alleged discriminatee present affirmative evidence that he or she would have worked for the employer for the backpay period claimed.