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: 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: Ronald J. Kramer

While Alan Ritchey Inc., 359 NLRB No. 40 (2012), became “non-binding” as a result of the Noel Canning decision, its holding is alive and well with the Board and the General Counsel’s Office. In a recently released Advice Memorandum, the General Counsel’s Office took the position that “Alan Ritchey was soundly reasoned and that the Board should adopt the Alan Ritchey rationale as its own.”  Washington River Protection Solutions, Case 19-CA-125339 (Div. Advice Oct. 14, 2014), released Nov. 18, 2014.

This alone is not earth shattering news, given that the General Counsel was a member of the Board when Alan Ritchey issued. In Alan Ritchey, the Board decided that newly organized employers normally cannot discipline employees without first notifying the union and bargaining over the decision. Although a few exceptions to the obligation to bargain before issuing the discipline (minor discipline, exigent circumstances) may exist and impasse need not be reached in negotiations before implementing discipline, an employer cannot act unilaterally and negotiations to agreement or impasse must follow. We reviewed this decision in a previous blog post.

Nor was the decision in Washington River Protection Solutions arguably that surprising. There, during the hiatus between contracts, the employer discharged an employee for misconduct in accordance with the disciplinary policy it had instituted under the contract before it expired, which gave the employer the right to implement work rules and discipline for just cause. The employer also refused to arbitrate because the discharge occurred after contract expiration. The Office of the General Counsel found that “it would not be appropriate to apply the Alan Ritchey pre-discretionary discipline bargaining obligation rationale here because the parties were operating under a discipline system that resulted from collective bargaining and there is no evidence that the Employer made any unilateral change to that discretionary discipline system or to the parties’ grievance-arbitration procedure.”

But what is disturbing is a reference in Washington River Protection Solutions to what appears to be an unpublished Advice Memorandum: Arlington Metals Corp., Case 13-CA-119045 (Div. Advice May 20, 2014). In Arlington Metals, the General Counsel’s Office apparently found that an employer that “lawfully implements a disciplinary system after impasse but refuses to arbitrate a grievance regarding discipline imposed pursuant to that system” on the basis that the parties lack a binding grievance-arbitration provision thereby commits an unfair labor practice. Apparently, the unilateral implementation of terms and conditions of employment “do not satisfy Alan Ritchey’s requirement of a ‘binding agreement’ to resolve disputes.” Such an employer remains obligated to bargain over discipline despite having implemented a disciplinary system.

It is difficult, especially without access to the opinion, to see how Arlington Metals can be reconciled with an Advice Memorandum issued just a month before Alan Ritchey, in which the General Counsel’s Office determined that an employer did not commit an unfair labor practice by lawfully implementing the “for cause” discipline portion of its management rights article upon reach impasse without implementing the grievance/arbitration procedure that would permit the union to test the employer’s “for cause” determinations. Anchorage Hilton, Case 19-CA-078070 (Div. Advice Nov. 15, 2012). While that case focused on whether the phrase “for cause” was so discretionary that it could not be implemented upon impasse, the charge was filed after the employer had relied upon that implemented language to discipline employees. Moreover, one would think, given that the General Counsel must have been aware of Alan Ritchey’s imminent issuance when Anchorage Hilton was issued, it was intended to be applicable even after Alan Ritchey was issued.

How is an employer to reconcile Alan Ritchey, Washington River Protection Solutions, Arlington Metals, and Anchorage Hilton?

1.         An employer negotiating for a first contract should follow Alan Ritchey until a contract is reached (or until the Board or a court reverses Alan Ritchey’s holdings).

2.         An employer implementing a last, best, and final offer for a new bargaining unit must continue to bargain discipline in accordance with Arlington Metals even if it has implemented a just cause discipline provision since the discipline was not issued pursuant to a “binding agreement.”

3.         During the pendency of bargaining a new contract after an old contract has expired, an employer may continue to discipline employees in accordance with the expired contract and existing disciplinary policies and practices without bargaining pursuant to Washington River Protection Solutions.

4.         Should an employer implement a last, best, and final offer during successor contract negotiations, it should hope it does not have to discipline anyone. An argument can be made, especially if the discipline provisions of the implemented contract did not change, that pursuant to Washington River Protection Solutions discipline is still being imposed under what at least was once a “binding agreement,” and pursuant to Anchorage Hilton an employer can implement just cause discipline upon impasse. It is possible, however, that Arlington Metals involved a successor contract instead of an initial contract. In such a case, an employer would be running a risk by failing to “bargain” over discipline once the successor contract was implemented.

In short, Arlington Metals (at least as it is described in Washington River Protection Solutions) makes no sense. That an employer could implement a proposal on discipline but must still bargain seems contrary to traditional principles of labor law—unless the General Counsel is backing away from Anchorage Hilton by claiming that “for cause” discipline is too discretionary to permit an employer to implement. But if that were true, then the right to discipline under the contract in Washington River Protection Solutions would have expired when the contract expired — no different than any other discretionary management right.

Time will tell where the Board eventually falls on these issues—assuming Alan Ritchey’s findings are even valid law. In the meantime, employer beware.

By: Kamran Mirrafati, Esq.

Just in time for football season and tailgate parties, the NLRB Division of Advice recently issued a Memorandum effectively limiting parking lot demonstrations outside an employer’s facility.  [See Wal-Mart Stores, Inc., NLRB Div. of Advice, No. 13-CA-99526, August 14, 2013 (released August 23, 2013).]  Here, the employer’s actions were vindicated, but employers generally are cautioned not to read this Memorandum too broadly.

The NLRB has long held that an employer may lawfully prohibit non-employees (i.e., union organizers and other solicitors) from accessing its property. The NLRB also has held that any such prohibition may not extend to prevent off-duty employees from accessing an employer’s parking lots and other outside non-working areas. But, what if a demonstration on the employer’s premises is led by an off-duty employee and includes both employee and non-employee demonstrators?  

The Division of Advice recently answered this question: an employer may lawfully use police officers to remove non-employee demonstrators and their paraphernalia (i.e., a minivan containing a projection system and stadium style speakers) from its parking lot, so long as it allows any employee demonstrators to remain on the premises. According to the Division of Advice Memorandum, such actions do not interfere with employee rights to engage in concerted activities, even if the employee demonstrators were effectively leading the demonstration and were deprived use of property that was instrumental to their demonstration.   

In the case at hand, an off-duty Wal-Mart employee drove to a Wal-Mart store in a minivan owned by a third-party organization whose goal was to educate employees about labor laws. The van had logos of the third-party organization and other graphic images wrapping around the entire vehicle. The off-duty employee parked the vehicle in the parking lot, two rows from the front entrance of the store, and immediately began to lead a group of about 18 non-employee demonstrators with loud music such as the song “We’re Not Gonna Take It” and a projection of protest video clips onto the store’s façade.  After about 15 minutes of this activity, police officers advised all the non-employee demonstrators to leave the parking lot with the minivan, but permitted any off-duty employee demonstrators to remain on the premises. The off-duty employee who was leading the demonstration was not issued any citation by the officers, nor was he ever issued any discipline for his involvement in the demonstration.

The Advice Memorandum stated that Wal-Mart lawfully used the police to enforce its valid Solicitation and Distribution Policy because it reasonably concluded that the demonstration constituted solicitation by an outside organization in violation of its lawful policy. While the action of the police deprived employees the use of the minivan, it was found that Wal-Mart did not unreasonably conclude that the van was owned and operated by the third party organization because the van displayed the logo of the organization. As a result, the Division of Advice recommended that the charge be dismissed, absent withdrawal by the charging party.

Notwithstanding the positive holding of this Memorandum, employers must be cautious when addressing solicitation, distribution, and/or other protected concerted activity on their property. The decision here turned primarily on the fact that Wal-Mart “reasonably concluded that the demonstration constituted solicitation by an outside organization” because it was only able to recognize two of its employees among a larger group of approximately 20 demonstrators. Therefore, it is also reasonable to conclude that the result may have been far different if there had been a larger contingent of employees in the demonstration.

By: James C. Goodfellow, Esq.

In an Advice Memorandum written in 2012 and recently released pursuant to a FOIA request, the NLRB Associate General Counsel, Division of Advice, addressed the legality of a social media policy that prohibited employees from, among other things, “us[ing] any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which include confidential information owned by the Company.” The Associate General Counsel concluded that the policy at issue unlawfully chilled employees’ ability to exercise their Section 7 rights. The Advice Memorandum provides further evidence of the Board’s scrutiny of employer social media policies, and of second-guessing of employers’ legitimate interests in promulgating such policies.

The employer sought to implement a social media policy which identified restrictions on the employees’ use of non-public information:

  • You [the employee] have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies…or about other Associates, customers, suppliers, or business partners.  If you have questions about what is confidential, ask your manager.
  • Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which include confidential information owned by the Company, unless you have received the Company’s prior written approval.
  • Do not defame or otherwise discredit the Company’s products or services….
  • Speak up if you believe anyone is violating these guidelines or misusing a Company-sponsored site. Please submit such reports to your manager and provide as much specific information as possible….

Please note that the Company will not construe or apply these guidelines in a manner that improperly interferes with or limits employees’ rights under any state or federal laws, including the National Labor Relations Act.

In the Advice Memorandum, the Associate General Counsel concluded that the policy violated the employees’ Section 7 rights because employees reasonably would construe the policy to restrict Section 7 activity. The Advice Memorandum observes that the policy’s prohibition of posting confidential or non-public information, in the absence of clarification, was so vague that an employee could reasonably construe it to include information about terms and conditions of their employment.

The Associate General Counsel also concluded that the prohibition of use of the employer’s logo, marks, and graphics was unlawful because engaging in non-commercial conduct protected by Section 7 would not interfere with the employer’s proprietary interests in its logo, marks and graphics. The prohibition against photographing or videotaping the employer’s premises was also found to be unlawful because it could unreasonably prevent an employee from using social media to communicate and share information regarding activities protected by Section 7, such as picketing or other concerted activities. And, the “savings clause,” or general disclaimer found in the social media policy, did not adequately inform employees that protected activities are in fact permitted. 

The Associate General Counsel, however, concluded that the prohibition against defaming the employer or other employees was not unlawful, because such actions are not protected by Section 7. Moreover, the requirement to report infractions of the policy was not unlawful because it does not restrict communication or threaten discipline and, once the unlawful provisions were removed from the policy, there was no threat that this section would restrain or chill activity protected by Section 7.

All employers, including those who employ non-union workers, should take note that social media policies continue to be in the crosshairs of the Board. For better or worse, social media platforms are replacing the town square as public fora for discussion. The Board, as currently constituted, is skeptical of general disclaimers. While drafting a policy that disclaims each and every possible chilling of a Section 7 right would result in unwieldy policies, this Advice Memorandum and previous advice and opinions of the Board demonstrate that a detailed cataloguing of specific examples of prohibited conduct may now, in effect, be required to pass muster under the Act. Employers should proceed with caution because the Board is lurking.    

By:  Gary Glaser, Esq.

In Tasker Healthcare Group dba Skinsmart Dermatology, NLRB Div. of Advice, Case No. 04-CA–094222 (issued 5/8/13, released 5/17/13), the NLRB’s Division of Advice concluded that an employer did not commit an unfair labor practice when it fired an employee for profanity-filled comments she made about the Company in a private Facebook group message. Despite the pretty rough profanities used, the conclusion reached by the NLRB’s Associate General Counsel was far from obvious, given the fairly extreme way the NLRB has recently expanded what constitutes “protected, concerted activity” in both the union and non-union environments, as has recently been reported on this blog. Indeed, until this glimmer of hope for employers, the notion that to be protected, Section 7 activity also had to be “concerted” had been severely eroded, if not totally eviscerated, since the Board’s seminal decision in Meyers Industries, 261 NLRB 882, 885 (1986) (Meyers II) aff’d sub nom., 835 F.2d 1481 (D.C. Cir. 1987), cert. denied, 487 U.S. 1205 (1988).

For example, in the Board’s recent decision in Hoodview Vending Co., 359 NLRB No. 36 (December 14, 2012), the Board essentially held that firing someone for circulating gossip that someone was going to be fired– i.e.., essentially for “stirring things up”– was unlawful because any discussion of “job security” is “inherently concerted.” In reaching its conclusion, the Board observed (over the dissent of then-Member Hayes) that any employee’s discussion of job security with another employee, even if out of a purely personal concern with no intent to induce group action, is inherently concerted and therefore protected by the Act. 

During the Facebook group messaging that took place in Tasker, the Charging Party speculated that the employer may make a returning employee a supervisor and then launched into a tirade of profanities about the employer, ending with a virtual dare to the company to fire her and “[M]ake [her] day. . .” In the Advice Memorandum, Associate General Counsel Kearney stressed that, other than the Charging Party, no current employees took part in that portion of the Facebook group messaging. Kearney went on to expressly distinguish the Board’s decision in Hoodview Vending, and thereby thankfully seems to have somewhat limited the holding of the Board in that case—at least for purposes of deciding when the Acting General Counsel will be authorizing the issuance of complaints. In doing so, Kearney thereby appears to have breathed some new life into the traditional notion that, to be concerted, an employee’s conduct must involve “shared concerns about terms and conditions of employment,” noting that “[t]he Board’s test for concert is whether the activity is engaged in ‘with or on the authority of other employees, and not solely by and on behalf of the employee himself,’” citing to Meyers II, 281 NLRB at 885. A reminder is in order to our readers, however, that things are not always what they appear.

As always, we will keep you posted. . .literally.

By Ashley S. Kircher

In a rare victory for employers, the NLRB’s Office of the General Counsel, Division of Advice (“Advice”) recently opined that Boeing Company’s Code of Conduct does not run afoul of the National Labor Relations Act. An Advice memorandum rejected a union’s charge that Boeing’s nearly decade-old Code of Conduct interferes with or restrains Section 7 activity by employees.

The following language in the Code of Conduct was viewed as potentially problematic:

  • Employees will not engage in conduct or activity that may raise questions as to the company’s honesty, impartiality, reputation or otherwise cause embarrassment to the company.
  • I will not engage in any activity that might create a conflict of interest for me or the company.
  • I will follow all restrictions on use and disclosure of information. This includes following all requirements for protecting Boeing information and ensuring that non-Boeing proprietary information is used and disclosed only as authorized by the owner of the information or as otherwise permitted by law.

Advice ultimately concluded, however, that this language does not violate the NLRA, primarily because of the context in which the language is found. Specifically, the Code of Conduct is contained within Boeing’s 43-page Ethical Business Conduct Guidelines, and the Guidelines provide many examples of prohibited conduct, such as bribery and insider trading. This led Advice to conclude that reasonable employees would understand that the document targets potential ethical lapses rather than protected concerted activity. 

Advice also noted that, although the Guidelines do not explicitly inform employees that their Section 7 activities are not covered by the Code of Conduct, they do direct employees seeking guidance to an online “frequently asked questions” page that includes the following statement:  “The Code of Conduct does not affect an individual’s ability to exercise his/her constitutional, statutory or other protected rights.” 

Finally, Advice pointed out that union representatives are present at new employee orientations where the Guidelines are presented. Advice reasoned that the union’s presence at these orientations would lead employees to believe that Boeing’s restrictions on using company assets and information would not extend to communications between employees and union representatives. 

The Union’s crusade against Boeing’s nearly decade-old Code of Conduct highlights the importance of making sure that language contained in employee codes of conduct is sufficiently insulated from challenge under the NLRA. The NLRB Advice Memo provides a nice roadmap for doing so.  In particular, employers may want to consider including examples of clearly illegal or unprotected conduct to flesh out what otherwise might be viewed as objectionable policy language.  And, while it might not make business sense to invite union representatives to new employee orientations, employers should strongly consider including language in their codes of conduct that explicitly informs employees that Section 7 activities are not covered.

By Brian M. Stolzenbach.

In a blog post on June 27, 2012, we noted a recent ALJ decision in American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), finding that an “at-will” policy in an employee handbook violated the Act because it would theoretically make employees think they could not band together in a union or otherwise to advocate for a change to that policy.  That case was settled before the NLRB could review the decision on appeal.  In the same post, we also mentioned another complaint issued shortly thereafter challenging a different “at-will” policy.  That case, too, was settled – this time before an ALJ could hear the case.  Nonetheless, these attacks on at-will policies were a bit scary to employers.

On Halloween, however, the NLRB General Counsel’s Division of Advice published two memoranda instructing two different Regional Offices to dismiss two other cases challenging at-will policies.  In American Red Cross, the challenged policy explicitly said employees could not “in any way” change their status as employees at-will.  The Division of Advice distinguished this from the policies at issue in the two more recent cases – observing that one specifically provided for possible changes if made in writing and signed by the company president and noting that the other merely said no one in management had authority to make changes to the policy.  One could argue that the latter is a distinction without a difference and that the General Counsel is trying to rein in some aggressive Regional Offices that seem to be mounting a frontal attack on at-will policies, in general.  In fact, the Division of Advice noted in its memoranda that the American Red Cross case was settled before the NLRB could actually review the decision and instructed all Regional Offices to consult with the Division of Advice before issuing a complaint challenging an at-will policy.  So maybe the NLRB’s General Counsel wants to put the brakes on the trend of attacking at-will policies.  If so, that would be a welcome development for employers throughout the country. 

In the meantime, however, employers now have some guidance from these two Advice Memos on how to write their at-will policies to pass muster with the NLRB’s General Counsel.