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New Labor Board General Counsel Issues Plans for Reversing Course

In a sweeping five-page Memorandum, new National Labor Relations Board General Counsel Peter B. Robb has directed NLRB Regional Offices to submit to his Division of Advice for review cases involving “significant legal issues.” The Board’s chief prosecutor’s guidance describes “significant legal issues” to include many Obama Board decisions that both overruled precedent and “involved one or more dissents.”

The “Mandatory Submissions to Advice” (Memorandum GC 18-02), dated December 1, 2017, further directs Regional Offices to submit to the Division of Advice “cases involving issues that the Board has not decided, and any other cases that the region believes will be of importance to the General Counsel.”

Robb has not yet identified any “novel legal theories” he wants explored through mandatory submissions to the Division of Advice.

Reversal of Obama-Board Precedent Sought

Robb signals that he will ask the NLRB to overturn numerous hot-button Obama-era Board precedents. Indeed, his Memorandum identifies 26 examples of Obama-era decisions that “might support issuance of complaint [under current Board law] but where [his office] also might want to provide the Board with an alternative analysis.”

Among others, those cases involve:

  • A finding of joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees.

  • Concerted activity where the employee engaged in “obscene, vulgar, or other highly inappropriate conduct.”

  • Handbook rules regulating or prohibiting: disrespectful conduct, use of employer trademarks and logos, use of cameras and recording devices in the workplace, and confidentiality of workplace investigations. (Robb also signals his overall disagreement with the NLRB’s analysis of employer rules and policies. He directs submission to the Division of Advice “[o]ther rules where the outcome would be different if Chairman [Philip] Miscimarra’s” alternative rules analysis test was applied.)

  • Requiring employers that allow employees to use their email systems to allow employees to use those systems to engage in protected concerted activities under Section 7 of the National Labor Relations Act.

  • Requiring employers to offer to bargain with the union before imposing discretionary discipline where the union and the employer have not executed an initial collective-bargaining agreement.

  • Establishing that the dues check off obligation survives the expiration of the collective bargaining agreement.

  • Broadening the circumstances under which witness statements must be disclosed to a union.

  • Finding unlawful the failure to give a company-wide wage increase to newly represented employees during initial contract bargaining.

  • The range of permissible conduct by union representatives during Weingarten interviews and the application of Weingarten in the drug testing context.

  • Cases broadening the circumstances under which an employer may be found to be a “perfectly clear successor.”

Griffin Initiatives Also Rescinded

Memorandum GC 18-02 also rescinds many of former General Counsel Richard F. Griffin’s initiatives, where Griffin had stated his office’s position on several important issues and others where he hoped to overturn additional NLRB precedents.

Seven Memoranda issued by Griffin were rescinded, including “Report of the General Counsel Concerning Employer Rules,” “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context,” and “Seeking Board Reconsideration of the Levitz Framework.” (The Levitz case involved circumstances under which an employer may withdraw recognition from a union.)

Also rescinded are initiatives seeking to:

  • Extend Purple Communications, where the NLRB found employees who have access to employer email should have access to employer email for personal use (e.g., for protected activity and internet, phones, and instant messaging use), if employees use such email regularly in the course of their work;

  • Apply Weingarten (the right to have a representative present during investigative interviews that may result in discipline) in non-union settings; and

  • Overturn the Tri-Cast doctrine on the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they select union representation.

Although the Memorandum is no guarantee that all Obama-era precedents will be overturned, it should provide employers with substantial comfort that relief is on the way.

Jackson Lewis P.C. © 2018

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About this Author

Philip B. Rosen, Jackson Lewis, Preventive Practices Lawyer, Collective Bargaining Attorney
Principal

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

212-545-4000
Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law
Principal

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

617-367-0025
Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney
Principal

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

212-545-4080