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New NLRB General Counsel Signals Major Shift Away From Obama-Era Board Policies

The National Labor Relations Board (NLRB) Office of the General Counsel (GC) has signaled in a sweeping memorandum that the agency, under the Trump administration, is likely to reconsider and reverse many of its groundbreaking initiatives and controversial rulings adopted under the Obama-era Board.

The GC is effectively the chief prosecutor in cases before the NLRB, and thus has a significant say in which cases come before the Board and how the issues are presented. In what is likely to be the first step in the wholesale reworking of Obama-era precedent, the new GC, Peter B. Robb, has instructed NLRB regional offices to seek input from the NLRB's Division of Advice before issuing complaints involving certain issues, and also withdrawn guidance issued by his predecessors. Confirmed by the Senate last month, Mr. Robb issued Memorandum GC 18-02 on December 1.

The GC has instructed regional offices to consult Advice for "alternative analysis"—rather than apply Obama-era precedent—on a host of issues. This move will impact some of the most controversial Obama-era Board decisions, such as Browning-Ferris (expanding coverage of the joint employer doctrine), Purple Communications (holding that employees generally have a right to use employer email systems for union and other activities protected by the National Labor Relations Act (NLRA)), and Lincoln Lutheran of Racine (reversing more than 50 years of precedent and holding that the dues check-off obligation survives expiration of a collective bargaining agreement). Additional cases that will require consultation with Advice include those involving:

  • concerted activity for mutual aid and protection where only one employee has an immediate stake in the outcome;

  • protection of activity under the NLRA that is obscene, vulgar, or highly inappropriate;

  • common employer handbook rules prohibiting disrespectful conduct, use of employer trademarks and logos, and workplace recordings;

  • social media postings that violate employer EEO policies;

  • intermittent and in-plant work stoppages;

  • off-duty employee access to employer property;

  • confidentiality of sexual harassment and other workplace investigations;

  • successorship; and

  • an employer's unilateral changes in terms and conditions of employment consistent with past practice.

In addition, the Obama-era GC memos and initiatives rescinded by last week's memo include those addressing:

  • the ability of employers to withdraw recognition from an established union;

  • various workplace rules;

  • inclusion of front pay in Board settlements;

  • deferral to the grievance and arbitration process; and

  • misclassification of independent contractors as an automatic violation of the NLRA.

We are now at the beginning of what is expected to be an era of dramatic change in NLRB law. As decisions begin to come down reflecting these changes, employers should be prepared to review and revise handbooks and policies, retrain supervisors and bargainers on the new guidance, and alter course on employer-employee interactions in both union and non-union workplaces.

Copyright © by Ballard Spahr LLPNational Law Review, Volume VII, Number 339

About this Author

Brain Pedrow, Ballard Spahr law firm, employment, labor, and employee benefit dispute lawyer

Brian D. Pedrow is the Practice Leader of Ballard Spahr's Labor and Employment Group. He represents employers and management in the full scope of matters related to employment, labor, and employee benefit disputes. Mr. Pedrow's practice includes all facets of employment-related litigation, such as discrimination, harassment, retaliation, breach of contract, and employment-based torts. He also has a significant practice representing benefit plans, fiduciaries, and plan sponsors in Employee Retirement Income Security Act (ERISA) litigation arising from benefits eligibility...

Daniel Johns, Ballard Spahr Law Firm, Philadelphia, Labor and Employment Attorney

Daniel V. Johns is the Leader of Ballard Spahr's Higher Education Group and is a member of the firm's Labor and Employment Group. Mr. Johns represents and advises employers and management in a variety of labor and employment issues, including discrimination, harassment, and other civil rights litigation; interest and grievance arbitrations; at-will litigation; restrictive covenant/trade secret claims; benefits litigation; independent contractor classification issues; collective bargaining; union avoidance; and unfair labor practice litigation before the National Labor...

William Keyser, KL Gates Law Firm, Energy Law Attorney

William Keyser, a partner in Washington, D.C., focuses his practice on regulatory litigation and transactions involving the nation’s electricity and capacity markets. Will represents clients before the Federal Energy Regulatory Commission (FERC), the Department of Energy, federal and state courts and state public utility commissions. His clients include electric utilities, transmission providers, independent power providers, hydro electric power producers, power marketers, public utility holding companies, and debt and equity investors. Will has represented and counseled...

Mary Cate Gordon, Ballard Spahr Law Firm, New Jersey, Labor and Employment Litigation Attorney

Mary Cate Gordon represents employers in all aspects of labor and employment law. Her employment litigation experience includes defending wage and hour, harassment, discrimination, retaliation, breach of contract, unfair competition, and wrongful termination claims. Ms. Gordon counsels employers on workplace issues such as hiring and discharge matters, reductions in force, wage and hour compliance, drug testing, and disability accommodations. She has experience assisting employers with drafting and reviewing workplace policies and agreements, including social media...