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delight, the Collyer Deferral Doctrine is no longer on the NLRB’s “naughty” list thanks to GC Memorandum 18-02, which rescinded GC Memorandum 12-01.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

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:  Tiffany T. Tran, Esq. and Timothy M. Hoppe, 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 to find prior posts.

In GC Memo 18-02, in what may bring some holiday cheer to employers around the country, the newly appointed General Counsel walked back the prior administration’s efforts to transform independent contractor misclassification into a stand-alone Section 8(a)(1) violation.

In an advice memorandum released in 2016, the former General Counsel signaled that he intended to do just that.  Pac. 9 Transp., Inc. , NLRB Div. of Advice, No. 21-CA-150875, 12/18/15 [released 8/26/16] involved a contentious unionization fight between the Teamsters and a trucking company that transferred cargo to and from the ports of Los Angeles and Long Beach.  The union initially filed an 8(a)(1) charge against the company alleging it interfered with drivers’ Section 7 rights by threatening and intimidating union supporters.  The company settled the initial charge, but then issued a notice reminding its drivers (1) that they were independent contractors, not employees; and (2) that independent contractors cannot form unions.

The former administration could have easily just looked at the notice and considered whether it was designed to chill Section 7 rights.  Pac. 9, however, went further, characterizing the company’s classification of the drivers (not just the notice), as a preemptive strike designed to prevent employees from exercising their rights.  Accordingly, “[a]lthough the Board has never held that an employer’s misclassification of statutory employees as independent contractors in itself violates Section 8(a)(1),” the memo interpreted Board decisions as supporting such a finding.

GC Memo 18-02 seems to restore some sanity to the General Counsel’s approach to independent contractor issues.  It could put to rest any notion that merely classifying workers as independent contractors violates the Act.  Instead, the General Counsel signals a return to an evidence based standard.  If a region has “evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity,” then the Region should submit the case to Advice.

Even under GC Memo 18-02, employers must still carefully analyze their relationship with independent contractors.  Particularly when faced with unionization efforts, the Board will still use a number of unruly agency factors to determine if contractors are, in fact, employees and capable of organizing.  But employers can rest a bit easier that they will not be flooded by ULP charges from unhappy contractors merely because of their classification.

 

 By: Bradford L. Livingston, Esq.

In yet another significant decision overturning a controversial Obama-era ruling, the NLRB has reverted to its prior standards in determining what will be an appropriate bargaining unit for union organizing and bargaining. PCC Structurals, Inc., 365 NLRB No. 160 (December 15, 2017).  Just a day before his term on the Board ended leaving a vacancy and 2-2 split among its members, Chairman Miscimarra along with the two newest Board members appointed by President Trump — over the sharp dissent of the Board’s two Democratic members — reversed the so-called “micro bargaining unit” test set out in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011). It’s now a Big(ger) Ba(rgaini)ng Theory, or as Sheldon Cooper might say: Bazinga!

By way of background, bargaining units are the identifiable groups of employees that unions can organize, represent, and bargain for at an employer’s facility or facilities. While the National Labor Relations Act for the most part does not define the specific requirements for who can be included in or excluded from any individual unit, it instead looks at whether the group shares enough common working conditions or “an appropriate community of interests.”  Those interests can include an almost limitless number of factors, ranging from the employer’s organizational, management and supervisory structure to which parking lots, break rooms or time clocks certain groups of employees use.  Sometimes a union may represent all employees except managers and supervisors who work at a single location.  Other times, they may represent just a particular craft (e.g., electricians), type of worker (e.g., clerical), or alternatively employees who work at multiple of the employer’s locations.  Likewise, at any individual facility, an employer may be required to deal and negotiate separate labor agreements with (and face the possibility of a strike from) multiple different unions and bargaining units.

The composition of a bargaining unit is significant for both organizing and bargaining. Under the NLRA, it does not need to be the “most” appropriate unit, merely “an” appropriate unit.  When a union files an organizing petition with the NLRB, it has invariably self-selected the group of employees where the union feels it has the best chance of winning a representation election. Often, this may be a smaller group within any facility. Under Specialty Healthcare, the NLRB had ruled that so long as any group that a union selected was minimally appropriate, it would not entertain an employer’s objections unless it could establish that other employees shared “an overwhelming” community of interest with the group the union wanted to represent. As cases under Specialty Healthcare found, working conditions need to “overlap almost completely” so that there was “no legitimate basis” for excluding others from the group the union sought to represent.  In effect, a union could often select a small group of employees within a much larger group, succeed in organizing them, and then it or other unions could try later to organize either other individual groups or the rest of the employees.  Divide and conquer.  Employers were faced with a greater likelihood of negotiating and administering different labor agreements with multiple individual bargaining units at the same facility.

In PCC Structurals, the NLRB reverted to its historical way of assessing any group that a union may seek to represent, looking at both the commonalities and differences in the employment relationship that the group shares with other coworkers.  In that case, the union sought to represent roughly 100 of over 2500 employees working at three of the employer’s facilities in Oregon.  These 100 employees worked in different departments and had different supervisors, each of whom was responsible for supervising other employees that the union did not seek to represent. In rejecting the Specialty Healthcare test under which the smaller group was found appropriate, the Board emphasized that each case will need to be assessed individually and that a smaller unit will not necessarily be appropriate.  Bigger may be better. Bazinga!

By: Paul Galligan, Esq. & Samuel Sverdlov, 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, & here to find prior posts.

In Banner Health Systems, 362 NLRB No. 137 (June 26, 2015) (originally decided in 2012 and reaffirmed upon remand following Noel Canning), one of the Obama Board’s more overreaching decisions, the 2-1 Board majority found that the employer unlawfully maintained a policy of asking employees during investigatory interviews not to discuss the internal investigation with others.  The Board majority did so based on testimony by a human resources investigator, who asked an employee not to discuss the on-going investigation with anyone, and the fact that the investigator sometimes used a checklist form that contained this point.  The investigation did not even involve Section 7 activity, but the majority nevertheless reasoned that employees could reasonably construe this refrain as impeding their Section 7 rights.

The Board majority proceeded from there to announce a new rule prohibiting employers from promulgating general rules barring employees from discussing ongoing investigations. The Board majority provided limited exceptions if witnesses needed protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there was a need to prevent a cover up.  (On appeal, the DC Circuit remanded this part of the ruling back to the Board based on the lack of substantial evidence.)

As it stands, the Banner Health Systems rule and the limited exceptions have made it virtually impossible for employers to create meaningful guidelines for internal investigators to instruct employees on the confidentiality of investigations.

The lengthy but sharp dissent from Phil Miscamarra provides an indication of how the new Trump Board and the Division of Advice will review Banner Health Systems.  Yesterday’s decision in Boeing Company (3-2 decision overruling the “reasonably construe” standard of Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) makes it a racing certainty that the Obama Board decision in Banner Health Systems will no longer fly.

Should you have any questions about a current or proposed confidentiality policy, or requiring confidentiality during internal investigations, please contact the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations Team to be sure your company’s approach passes legal muster under current law.

By: Ronald J. Kramer, 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 to find prior posts.

Last week’s issuance of General Counsel Memo 18-02 gives companies hope that the Obama Board’s controversial successorship precedents may be reversed.  General Counsel Robb directed that successorship cases involving the following decisions be submitted to Advice for review: GVS Properties, LLC, 362 NLRB No. 194 (2015); Nexeo Solutions, LLC, 364 NLRB No. 44 (2016); Creative Vision Resources LLC, 364 NLRB No. 91(2016).  Each case merits reconsideration.

Successorship:  Whether an asset buyer has a duty to bargain depends on whether (1) a majority of the buyer’s workforce consists of the former employees of the seller, (2) the buyer’s “operational structure and practices differed from those of” the seller, and (3) the unit would no longer be an appropriate one. NLRB v. Burns Int’l Sec. Servs, Inc., 406 U.S. 272 (1972).  Even if the buyer is a Burns successor that must recognize and bargain with the union, it is free to set initial terms and conditions of employment unless it is a “perfectly clear” successor:  “[T]here will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees’ bargaining representative before he fixes terms.” Id.

GVS Properties:  In GVS Properties, an asset buyer required by a local law to retain the predecessor’s workforce for a certain initial time period was found to be a Burns successor even though it had no choice in whom to hire.  Dissenting Board Member Johnson argued that, based on Fall River Dyeing v. NLRB, 482 U.S. 27, 40-41 (1987), a buyer can become a successor only if it does so voluntarily, i.e., if it makes a “conscious decision” to hire a majority of the predecessor’s employees. When a worker retention statute applies, the Burns test could thus only be applied upon the expiration of the state mandated employment period, after the employer could freely choose whether and how many of the predecessor employees to retain.

The Board majority disagreed, claiming that GVS made its “conscious” decision to have a majority of its workforce consist of predecessor employees when it acquired assets in a locale subject to the retention law. The majority analogized to prior cases where the Board found successorship to apply when buyers were required to retain the predecessor’s employees as part of the purchase agreement, or when employees were hired on a probationary basis.

Member Johnson warned that the Board’s decision likely would nullify local worker retention statutes, for the courts would find them preempted by the NLRA given that states and local governments effectively could use such laws to force purchasing employers to recognize unions. Indeed, in Rhode Island Hospitality Ass’n v. City of Providence, 667 F.3d 17 (1st Cir. 2011), the court rejected preemption claims on the assumption that, under Burns, a successor employer could not be forced to recognize the union during a statutory retention period.

Nexio Solutions and Creative Vision Resources:  The other two decisions expanded the when a buyer was a “perfectly clear” successor bound by the predecessor’s contract.  In Nexio Solutions, the Board found perfectly clear successorship — not because of what the buyer did or said — but because the seller initially promised employees that they would be hired by the buyer under basically the same terms and conditions of employment.  Traditionally, for perfectly clear successorship to trigger the buyer must either mislead employees into believing there would be no changes or fail to clearly announce an intent to set new terms prior to inviting former employees to accept employment. The Board imputed seller’s statements to the buyer, and disregarded the buyer’s statements at the time employees were offered positions that conditioned employment on different terms and conditions of employment.

Dissenting Member (now Chair) Miscimarra rejected the majority’s claims that the buyer must be held to the seller’s statements since the sale agreement provided for buyer review of communications, that it somehow should have repudiated the statements, or that seller was acting as the buyer’s agent.  He also rejected claims that the sale agreement somehow made the buyer a perfectly clear successor since it provided both that employees would be offered positions and that employment terms would be substantially comparable in the aggregate.  Miscimarra decried the decision as ungrounded in the law of agency and counter to the policies underlying Burns and Spruce Up.

In Creative Vision Resources, the Board found perfectly clear successorship where:  the understanding was anyone who submitted an application would be offered a position; only a minority of employees provided applications were advised at the time that there would be different employment terms; all of the personnel, who were then independent contractors, received W-4 withholding forms with their applications; and on the morning operations were to begin employees were advised of the new terms, causing several to not to accept employment.  The Board determined that the successor had expressed an intention to retain the employees, and became a perfectly clear successor by not concurrently revealing its intention to establishing new employment terms when issuing applications.  Advising employees the first morning they showed up to work was insufficient since the successor had already expressed its intent to retain the predecessor’s employees.

Dissenting Member (Chair) Miscimarra argued the successor had effectively communicated its intent to set new terms on or before employees were invited to accept employment (which he considered under the facts of this case to be the morning operations started) because: a number of employees had been told in advance; the W-4 withholding forms clearly portended different employment conditions; and before work actually started such that employees could accept employment all were told of the changes.  Miscimarra criticized the majority for applying the law in “an excessively rigid and formalistic manner that does not do justice to the unique facts of this case,” reminded them that the exception must remain a narrow one, and noted that the burden of proof was on the General Counsel, not the employer.  Miscimarra also argued that an employer could not be considered to be a perfectly clear successor unless and until the union demanded recognition.

Whether/when a buyer subject to a retention statute is to be considered to be a successor, and the conditions under which are buyer might be a perfectly clear successor are critical issues companies need certainty on when acquiring businesses.  While a reversal of these three precedents would benefit employers, they are still the law.  Companies not wishing to become test cases for the Trump Board should carefully follow current successorship precedents when acquiring businesses–and hope the Board gets its test cases soon.

 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.