By: Tiffany Tran, Esq.

Seyfarth Synopsis: In another signal that the Board may overturn the Obama Board’s decision in Purple Communications allowing employees to use their employer’s email systems to communicate about wages, hours, working conditions and union issues, the Board recently published a letter reiterating its decision to reconsider Purple Communications and invited comment from the public on the standard the Board should apply in these cases.

Under Purple Communications, 361 NLRB 1050 (2014), employees who have access to their employer’s email system for work-related purposes have a presumptive right to use that system for Section 7 protected communications regarding wages, hours, working conditions and union issues on nonworking time. Purple Communications overturned the Board’s decision in Register Guard, 351 NLRB 1110 (2007), holding that employers may lawfully impose neutral restrictions on employees’ non-work-related uses of their email systems, even if those restrictions have the effect of limiting the use of those systems for communications regarding union or other protected concerted activity.

In December 2017, the newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. The memo cited Purple Communications as one of the cases the GC “might want to provide the Board with alternative analysis.” We previously blogged about the GC’s memo on this issue here.

Less than one year later, in August 2018, the Board announced, and Seyfarth blogged about it here, that it would invite briefing on whether it should “adhere to, modify, or overrule Purple Communications.” The Board made this announcement in Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, a pending case before the board that directly applied Purple Communications. In Caesars Entertainment Corporation d/b/a Rio All-Suites Hotel and Casino, the Administrative Law Judge had found that the employer’s policy prohibiting the use of its email systems to send non-business communications violated Section 8(a)(1) of the NLRA under Purple Communications. The employer excepted to the decision and asked the Board to overrule Purple Communications. Rather than immediately issue a decision, the Board invited the public to comment on this issue.

After extending the deadline to file briefs until October 5, 2018, nineteen amicus briefs were filed from various unions, senators, and interested groups on both sides of the issues. Notably, the GC submitted a brief urging the Board to overrule Purple Communications and return to the holding of Register Guard. The GC further urged that exceptions should be made on a case-by-case basis where the Board determines that employees are unable to communicate in any way other than through the employer’s email system. Finally, the GC argued that Register Guard should apply to other employer-owned computer resources not made available by the employer to the public.

And while five Democrat Senators recently sent a letter to NLRB Chairman John Ring expressing concern over the Board’s invitation to file briefing on the Purple Communications standard, Chairman Ring’s response letter reaffirmed the Board’s decision to reconsider Purple Communications and stated “the Board requested briefing from all interested parties to ensure we are fully informed of the arguments on all sides.”

Although the Board has yet to issue its decision, the Board’s and GC’s actions appear to signal that employers may continue to have hope about winning this battle.

By Ashley Laken

Seyfarth Synopsis: NLRB affirms ALJ’s ruling finding that a cocktail bar waitress was illegally fired for voicing workplace concerns during a staff meeting.

On April 26, 2018, in Parkview Lounge, LLC d/b/a Ascent Lounge, 366 NLRB No. 71, the National Labor Relations Board affirmed an NLRB administrative law judge’s ruling that found that a non-unionized employer violated the National Labor Relations Act by discharging a cocktail waitress in response to her engaging in protected concerted activity when she vocally discussed workplace concerns at a staff meeting.

The Facts

During an all-staff meeting on January 27, 2016, the cocktail waitress raised a number of concerns affecting employees at the employer’s facility, including concerns about the employer’s on-call scheduling system, its failure to provide certain workplace benefits, its recent decrease in the pay rate during parties, the cold temperature in the bar, and the uncomfortable uniforms imposed on servers.  Other servers at the meeting nodded their heads in approval as the waitress voiced the various work issues.

After the meeting, the waitress sent an email to management in which she claimed that comments they had made to her were irresponsible, that it was her right to look for another job, and “I feel you’re personally holding a vendetta against me because I speak my mind on issues that affect us (the employees).”  Just two days later, the employer’s operating owner fired the waitress, telling her she was being terminated because she did not get along with management.

The Board’s Ruling

In finding that the employer violated the Act in firing the waitress, the Board found that the employer had terminated the waitress in response to her raising group workplace concerns during the January 27th staff meeting.  In reaching this conclusion, the Board observed that it was uncontested that the waitress was engaged in protected concerted activity when she voiced a number of group workplace concerns during the staff meeting, which were met by nods of approval from the assembled employees.  The Board also found that the employer’s operating owner had knowledge of the waitress’s protected concerted activity when he made the decision to terminate her.

The Board further found that the employer held animus toward the waitress speaking out at the meeting, noting that the suspicious timing of the discharge (just two days after she engaged in protected concerted activity) was evidence of animus and that the employer’s proffered reason for her termination (her inability to work with management) was pretextual.  In this regard, the Board observed that management had praised the waitress’s work performance just a week before her termination, and that the employer had listed performance issues as a reason for the waitress’s termination in its official report to the New York State Department of Labor.  The Board ordered the employer to offer the waitress reinstatement to her former job or a substantially equivalent position and to make her whole for any loss of earnings or other benefits.

Employer Takeaways

The decision serves as a reminder that it is unlawful for both unionized and non-unionized employers to terminate employees for raising group workplace concerns.  Because it is sometimes unclear whether an employee is raising group workplace concerns or purely personal gripes, when considering terminating any employees who have made complaints about their terms or conditions of employment, employers would be well-advised to consult labor counsel before proceeding with termination.

By:  Kyllan Kershaw & Kaitlyn Whiteside 

Seyfarth Synopsis: In Colorado Symphony Association, 366 NLRB No. 60 (April 13, 2018), the NLRB found that an employer had an obligation to disclose information related to individual overscale contracts because the request related to the union’s investigation of potential sex discrimination, a mandatory subject of bargaining.

In a unanimous decision issued on April 13, 2018, the NLRB upheld an Administrative Law Judge’s (“ALJ”) decision ordering the production and disclosure to the Union of individual overscale contracts entered into between the Colorado Symphony Association and certain of its musicians.

The catalyst for the request came from the Principal Flutist in the Symphony who believed that she was being paid less than her male counterparts.  The Flutist raised this concern to the Union during her individual contract negotiations with the Symphony, which did not involve the Union. She also alerted the Union to the fact that she was considering filing a charge with the Equal Employment Opportunity Commission (“EEOC”) regarding her alleged sex discrimination.  Although the Union advised the Flutist that they could not assist with her EEOC filing, they subsequently requested copies of the individual overscale contracts from the Symphony.  A mere two days later, and without the requested information, the Flutist filed her EEOC charge.

According to the ALJ and the NLRB, the Symphony was required to provide copies of the individual overscale agreements to the Union despite the fact that: (i) the CBA expressly authorized the Symphony to negotiate and enter into these agreements; (ii) the Union did not participate in the individual overscale agreement negotiations; (iii) the Union never filed or assisted with a grievance related to the overscale agreements, nor had it raised any issue regarding these agreements during negotiations for a new CBA; and (iv) the CBA did not prohibit the Symphony from engaging in race or sex discrimination or contain a clause obligating the Symphony to comply with all applicable federal and state law, meaning that there was no way for the Flutist to file a grievance under the agreement for her alleged discrimination.

Regardless, the ALJ found that “investigating possible employer race or sex discrimination is a legitimate purpose related to a union’s collective-bargaining duties and responsibilities,” even without the presence of a non-discrimination clause in the contract.  The ALJ speculated that because the parties were in negotiations, the Union could have used the individual overscale agreement information to propose the inclusion of such language in a future agreement.  Even if that was not the goal, however, the ALJ asserted that the Union was investigating potential sex discrimination, which is a well-established mandatory subject of bargaining.   The ALJ further noted that the Union “may therefore be entitled to information that is relevant and necessary to determining whether a particular employment action is discriminatory, even if the employment action itself is not a mandatory subject [of bargaining].”

The ALJ likewise dismissed the Symphony’s claim that the Union’s request constituted an improper fishing expedition for information to support the Flutist’s EEOC charge, noting that the Flutist had not filed the EEOC charge at the time of the initial request, the information sought was presumptively relevant, and that regardless of the EEOC charge filing, a union may conduct its own investigation of possible employer discrimination as part of its legitimate collective-bargaining duties and responsibilities, even where the CBA lacks any non-discrimination provision.

Employers should note that this case can be seen as emblematic of the increased expectations of a union’s responsibilities in the “Me Too” era.  It also appears that the NLRB is willing to accept these additional expectations as a legitimate responsibility of a union as the employee’s collective bargaining representative.  What remains to be seen is how far a union will go to protect its female members from sex discrimination and how much information the NLRB will require an employer to provide on non-mandatory subjects of bargaining where a union claims its request relates to investigating possible discrimination.

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: John J. Toner, Esq.

Seyfarth Synopsis: In a decision issued late last week, The Boeing Company, 365 NLRB No. 154 (Boeing), the newly constituted “Trump” National Labor Relations Board (“Board”) announced that employers could once again maintain common sense rules regarding employee conduct at the workplace.

Of all the decisions issued in recent years by the previous Board, none was more baffling than those regarding an employer’s required standards of employee conduct contained in employee handbooks. These decisions were premised on a 13-year old decision in Lutheran Heritage Village-Livonia (Lutheran Heritage) which held that, in addition to an employer’s policy being found unlawful if it explicitly restricted protected, concerted activities under Section 7 of the National Labor Relations Act, a policy would also be found unlawful if :

  • employees would reasonably construe the language to prohibit Section 7 activity,
  • the rule was promulgated in response to union activity, or
  • the rule has been applied to restrict the exercise of Section 7 rights.

The Obama Board used the first test (how would employees “reasonably construe” the language of a policy) to invalidate numerous common sense policies, such as requiring employees not to engage in conduct that impedes “harmonious interactions or relationship” or prohibiting “abusive or threatening language to anyone on company premises.” The Board found these and other policies to be illegal without taking into account an employer’s legitimate justifications or the “real-world complexities” in a workplace.

To further complicate matters, the Obama Board sometimes found policies with the same objective (civility in the workplace) to be lawful. The byzantine nature of these decisions made it nearly impossible for an employer to maintain policies regarding employee conduct with any assurance that the Board would find the policies to be lawful.

In the Boeing decision, the Board majority (Chairman Miscimarra, and Members Emanuel and Kaplan), over a strong dissent (Members Pearce and McFerran), thankfully overruled the Lutheran Heritage “reasonably construe” standard and established a new test for evaluating whether a facially neutral policy, rule, or handbook provision, when reasonably interpreted, would interfere with employee Section 7 rights. Specifically, the Board in evaluating a policy will seek to strike a proper balance between (1) the nature and extent of the potential impact of the policy on employee Section 7 rights and (2) the employer’s legitimate justifications associated with the rule.

To provide greater clarity to all parties, the Board’s majority announced that, in the future, it will analyze the legality of workplace policies based on three categories:

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights, and thus no balancing of employee rights versus employer justification is warranted; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. The Board gave as an example under Category 3 a policy prohibiting employees from discussing wages or other working conditions.

The Board specifically highlighted as examples of policies that would be legal under Category 1, including policies requiring employees to foster “harmonious interactions and relationships” or “rules requiring employees to abide by basic standards of civility,” and overruled previous cases that held to the contrary.

To be sure, there will be some confusion and issues to be addressed as the newly-announced categories are applied to employee handbook policies, but what is certain is that employers can once again lawfully require that employees maintain a reasonable level of civility in the workplace.

 

 

  By: Kyllan Kershaw, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo 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 to find prior posts.

While many employers were surprised by the Obama Board’s inability to overturn IBM Corp.,  341 NLRB 1288 (2004), and extend Weingarten rights to non-union employees, the Obama Board powerfully expanded the scope of Weingarten rights in a number of areas, including significantly diminishing a unionized-employer’s ability to conduct reasonable suspicion drug testing in Manhattan Beer Distributors, 362 NLRB No. 192 (2015).  In Manhattan Beer, the Obama Board majority ruled that a beer distributor violated the NLRA by terminating a unionized employee for refusing to take a drug test without first providing him with a reasonable opportunity to consult in person with an authorized union representative, despite the fact that the employee was able to consult with a union representative via telephone.  Member Johnson’s dissent outlines the numerous ways in which the decision substantially interferes with an employer’s interest in maintaining a safe and drug-free workplace.

The Obama Board likewise expanded Weingarten rights beyond any prior precedent in Howard Industries, Inc., 362 NLRB No. 35 (2015), broadening the range of permissible conduct by union representatives in Weingarten interviews to include allowing union representatives to assist witnesses by providing scripted answers.  In Fry’s Food Stores, 361 NLRB No. 140 (2015), the Obama Board bolstered Weingarten rights further by finding that Weingarten requires that an employee has the right to consult with a union representative not only during the investigatory interview but also before the interview, even without the employee requesting such a meeting.

Fortunately for employers, in GC Memo 18-02, the NLRB’s new General Counsel previews that the General Counsel’s office will seek to nip the Obama Board’s Weingarten overreach in the bud, requiring Regions to submit to the Division of Advice any matters involving the range of permissible conduct by union representatives in Weingarten interviews and matters involving the application of Weingarten in the drug-testing context.  The new General Counsel also rescinded the initiative to overturn IBM Corp. and extend Weingarten rights to non-union employees.

The General Counsel’s change in direction on Weingarten rights is certainly a gift to employers, but GC Memo 18-02 leaves one notable Weingarten decision on the nice list.  Specifically, the GC Memo fails to mention the Obama Board’s controversial decision in E.I. Dupont de Nemours & United Steel Workers Local 699 to allow dishonest employees to receive reinstatement with backpay if an employer violates his or her Weingarten rights, effectively receiving “get out of jail” free cards for any misconduct that occurs during an unlawful interview. 362 NLRB No. 98 (2015).  Alas, while GC Memo 18-02 previews many long-awaited gifts to employers, the Trump Board’s revisiting of E.I. Dupont remains on every unionized-employer’s holiday wish list.  Maybe next year.

  By: Christopher W. Kelleher, Esq. & Danielle A. Vera, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo 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 to find prior posts.

In April and August of this year, the Second and the Eighth Circuit Courts of Appeals affirmed two Board rulings and held that under certain circumstances even extremely vulgar or racially bigoted speech fall within the protections of the NLRA. In Memorandum GC 18-02, the new General Counsel has signaled his interest in reconsidering the analysis in these cases, and narrowing the outer boundaries of speech protections afforded by the Act. Importantly, this is an opportunity for the Trump Board to change direction regarding the application of the Atlantic Steel factors to social media cases.

In Pier Sixty, an employee was terminated for posting the following on Facebook regarding his supervisor Bob: “Bob is such a NASTY MOTHER F***ER don’t know how to talk to people !!!!!! F*** his mother and his entire f***cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!.” NLRB v. Pier Sixty, LLC, Case No. 15-1841 (2nd Cir. Apr. 21, 2017). The employee posted this online during an authorized break only two days before a contentious union election. Ultimately the ALJ, the Board and the Second Circuit agreed that the vulgar language did not push the comment outside of the NLRA’s protected speech. For a more detailed discussion of this case, Click here.

In Cooper Tire & Rubber Co., the ALJ, Board, and Eighth Circuit agreed that a picketer’s racially bigoted comments toward African-American replacement workers did not provide the Employer with “just cause” to terminate him. Cooper Tire & Rubber Co. v. NLRB, Nos. 16-2721, 16-2944 (8th Cir. Aug. 8, 2017). The picketer shouted at a van full of African-American replacement workers, “Did you bring enough KFC for everybody?” and asked other picketers if they could “smell fried chicken and watermelon” as the van passed by. The Eighth Circuit held that because the speech was merely offensive and not actually threatening, it was protected.

Although the new General Counsel’s Advice memorandum signals that change related to the outer bounds of NLRA-protected speech is on the horizon, until any change is made, Employers should remain vigilant regarding the NLRB’s current position but look forward to potential changes coming in 2018.

 By: Karla E. Sanchez, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo 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 to find prior posts.

In GC Memo 18-01, the newly appointed General Counsel listed cases concerning no cameras and recording rules as requiring submission to the Division of Advice for consideration as to whether the GC “might want to provide the Board with alternative analysis.” The GC also cited to Purple Communications, 361 NLRB 1050 (2014).  The GC’s inclusion of Purple Communications in its Memo suggests that the GC may disagree with the Obama Board’s decision.

In Purple Communications, the Board majority ruled that employees who have access to an employer’s email system as part of their job, may during non-working time use the email system to communicate about their wages, hours, working conditions, other terms and conditions of employment, and union issues. Then Member Miscimarra and former Member Johnson dissented.

In Purple Communications, the Company had an “Internet, intranet, Voicemail, and Electronic Communications Policy” that only allowed the use of company owned electronic equipment and systems, including email, for business purposes. The Communications Workers of America union filed the charge alleging that the prohibition interfered with employees’ Section 7 rights. The Union prevailed. Notably, the ruling overturned the Board’s 2007 decision in Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009) (“Register Guard”), which held that employees have no statutory right to use their employer’s email systems for organizing or for discussing wages or other terms and conditions of employment.

In their separate dissents, Miscimarra and Johnson articulated various reasons for their disagreement with the Board’s majority. For example, Miscimarra articulated four main concerns and reasons for his dissent:

  • That the Board’s decision “Improperly presumes that limiting an employer’s email system to business purposes constitutes ‘an unreasonable impediment to self-organization.’”
  • That the Board’s decision failed to balance NLRA protections for employees and employers’ property rights.
  • That the Board’s decision significantly affects other legal requirements including well-established legal principles under the NLRA. For example, Miscimarra articulated that employers, unions, and employees would have problems exercising the right to use email systems with other NLRA principles and rights such as the prohibition on surveillance of employees’ protected activities, the Board’s axiom that working time is for working, and employers’ right to restrict solicitation during working time.
  • That the Board’s decision replaced a “longstanding rule that was easily understood,” causing instability, confusion, and uncertainty.

The Purple Communications decision has been viewed by many employers as a taking of employer’s private property. Given the GC’s inclusion of Purple Communications in its GC Memo, there is hope for employers in 2018 that the Obama Board’s deviation from its precedent in Register Guard may be reconsidered under the Trump Board.

 

 By: Kaitlyn F. Whiteside, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo 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 to find prior posts.

With the publication of Friday’s General Counsel Memorandum (GC Memo 18-02), employers may finally begin to see a much-anticipated shift at the NLRB that many have been waiting on since last year’s election.

Of particular concern for many employers is the NLRB’s interpretation of commonplace work rules contained in employee handbooks. According to newly appointed General Counsel Peter Robb, cases involving some potentially unlawful handbook rules must now be submitted to the Division of Advice.  In particular, GC Memo 18-02 notes that the Division of Advice is interested in cases involving certain rules prohibiting disrespectful conduct, rules prohibiting use of employer trademarks and logos, and no cameras/recording rules.

Perhaps most notably, GC Memo 18-02 expressly rescinds the prior General Counsel guidance concerning employer work rules contained in GC Memorandum 15-04. There, former General Counsel Richard Griffin offered thirty pages of guidance on potentially unlawful workplaces rules under the Board’s standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).

This standard has been criticized in a number of recent dissents, including a lengthy critique by Chairman Miscimarra in William Beaumont Hospital, 363 NLRB No. 162 (2016) (see post here). There, then Member Miscimarra advocated for entirely abandoning the Board’s standard in Lutheran Heritage under which the Obama NLRB greatly expanded the scope of workplaces rules considered to be unlawful under the NLRA.

Lutheran Heritage provides that a facially-neutral rule that does not expressly restrict Section 7 activity, was not adopted in response to Section 7 activity, and has not been applied to restrict Section 7 activity, may still be unlawful if employees would reasonably construe the rule as restricting Section 7 activity. In William Beaumont, Chairman Miscimarra suggested that an alternative approach would be to evaluate facially-neutral rules on “(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.”

In GC Memo 18-02, the General Counsel appears to suggest that he may support Chairman Miscimarra’s proffered test. The General Counsel specifically notes that the Division of Advice is interested in any cases in which the outcome would be different under the Chairman’s analysis in William Beaumont. The full implications of Chairman Miscimarra’s proposed test for handbook provisions is unknown. What we can say for sure is that the Chairman sees value in the publication of workplace rules and policies and that he has advocated for predictability and practicality, music to many employers’ ears.  With the General Counsel in place and a full five-member Board confirmed by the Senate, employers may have additional reasons to look forward to 2018.

  By: Brian Stolzenbach, Esq.

Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration, which our blog will be exploring over the next three weeks.

In keeping with the tradition of prior General Counsels (see here (GC 16-01), here (GC 14-01), and here (GC 11-11) for prior memos from President Obama’s appointees), Mr. Robb provided the NLRB’s Regional Offices with a list of issues that must be submitted to his Division of Advice for consideration before proceeding to issue a complaint in an unfair labor practice case. Although the Regional Offices are instructed to issue complaints in accordance with extant law (i.e., the law created by the NLRB during the Obama Administration), Mr. Robb suggests that he “might want to provide the Board with an alternative analysis.” As usual when the General Counsel’s office flips from Democrat to Republican or vice versa, the memo basically provides a list of important case law developments from the prior administration that are likely to be overturned. Here, Mr. Robb identifies nearly 30 such cases covering 15 important subjects for employers.

In addition, Mr. Robb immediately rescinds seven prior memos issued by President Obama’s appointees and revokes five initiatives set forth in other memos issued by the General Counsel’s Division of Advice during the Obama Administration.

As the numbers above suggest, a full explanation of Mr. Robb’s five-page memo is far more than a single blog can handle. Seyfarth Shaw labor lawyers will be posting an item on this blog each weekday for the next three weeks, exploring a different aspect of the memo each day.

P.S. If you just can’t wait and need a full and complete analysis of the memo more quickly, don’t hesitate to drop your friendly neighborhood Seyfarth labor lawyer a note. Any of us would be glad to oblige.