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NLRB General Counsel Peter Robb Issues “Mandatory Submissions to Advice Memo,” Outlining His Approach and Identifying Direction to Come

Peter B. Robb, the newly sworn in General Counsel of the National Labor Relations Board has issued a memorandum, Mandatory Submissions to Advice, GC Memo 18-02 (the “Mandatory Submissions Memo”), that offers clear information as to how he is likely to proceed in setting the agenda and priorities for the Office of the General Counsel which is “responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.” As we have previously noted, such Mandatory Submission memos offer a roadmap of the General Counsel’s priorities on cases and issues that he wants to get before the Board and often present a window into the General Counsel’s thinking about how he is likely to proceed.

“The Past Eight Years Have Seen Many Changes in Precedent”

In something of an understatement, reflecting on the activist Board of the Obama administration, the General Counsel observes that “the last eight years have seen many changes in precedent” from long standing Board holdings, “often with vigorous dissents.”   The Mandatory Submissions Memo identifies a number of the areas in which the Board moved in a more activist manner and identifies issues that the new General Counsel will seek to bring back before the Board.

All Cases Involving Significant Legal Issues Will Now Be Submitted to Advice

The Division of Advice, which is part of the Office of the General Counsel is charged with providing guidance to the Board’s Regional Offices “regarding difficult and novel issues arising in the processing of unfair labor practice charges, and coordinates the initiation and litigation of injunction proceedings in federal court under Section 10(j) and (l) of the National Labor Relations Act.”

Under the Memo, the General Counsel has directed that the following cases be submitted for guidance as cases “involving significant legal issues”:

  • “Cases that involve issues over the last eight years that overruled precedent and involved one or more dissents,”
  • “cases involving issues that the Board has not decided,” and
  • “any other cases that the Regional Offices “believe will be of importance to the General Counsel.”

While the Memo allows the Regional Offices to continue to issue complaints “where issuance is appropriate under current Board law,” the Memo directs the Regional Offices to seek guidance from Advice on how to present such issues to the Board in briefs to Administrative Law Judges and the Courts before filing, so that Advice can “provide appropriate guidance on how to present” or argue the issues.  In other words, Advice and the General Counsel may develop and pursue different legal theories and seek different outcomes and interpretations of the Act in such cases.

The General Counsel Will Not Be Re-Briefing Cases Already Before the Courts and the Board

Many of the most significant decisions of the Obama Board are already before the Supreme Court and the Courts of Appeal, either on applications by the Board for enforcement of its orders, or on requests by employers as respondents appealing from the Board’s decisions. These include cases like Browning-Ferris, the 2015 case in which the Board adopted a new and looser test for determining whether companies are joint employers, and Murphy Oil and D.R. Horton, in which the Board found that requiring employees to waive their rights to bring class claims in wage and hour and other lawsuits and to arbitrate rather than litigate in court, which are before the D.C. Circuit and the Supreme Court respectively.

According to the Mandatory Submissions Memo, “in order to avoid delay,” the General Counsel “will not be offering new views on cases pending in the courts, unless directed by the Board or courts.”

The Memo Identifies Specific Issues and Lines of Cases That Must be Submitted to Advice

The Mandatory Submissions Memo identifies a broad swath of recent Board precedents and topics that must be submitted to Advice, where there is a good chance the new General Counsel will ask the Board to return to pre-Obama Board interpretations of the Act and practices.  These include:

  • Joint –Employer – Browning-Ferris Industries holding that joint-employer relationships can be found based on “evidence of indirect or potential control over the working conditions of another employer’s employees.
  • Use of Employer’s Email Systems for Union Activity– The Mandatory Submission Memo calls for the submission to Advice of all cases involving claims based on Purple Communications’ holding that “employees have a presumptive right to use their employer’s email systems to engage in Section 7 activities. The Memo also explains that the new General Counsel is effectively overruling prior Advice Memoranda in which his predecessor noted his initiative “to extend Purple Communications to other [employer owned] electronic systems,” such as the internet, phones and instant messaging systems that employees regularly use in the course of their work.
  • Cases In Which Policies in Employee Handbooks Were Found to Interfere With Section 7 Rights – The Mandatory Submissions Memo indicates the General Counsel will likely be asking the Board to reexamine a broad range of holdings in which policies and conduct standards contained in handbooks and work rules were found to interfere with employees Section 7 rights, in many cases in non-union workplaces. These will include cases finding prohibiting “’disrespectful’ conduct,’ rules prohibiting the use of cameras and recording devices in the workplace, and policies concerning confidentiality in investigations.
  • Cases Involving the Standard For Determining Whether Employees Would Find a Work Rule or Policy to Unlawfully Interfere With Section 7 Rights – Which Board Member Miscimarra – One of the areas in which now NLRB Chairman Philip Miscimarra most frequently disagreed with his colleagues on the Obama Board was over the Board’s use of the Lutheran Heritage test, which he repeatedly described as a test that “defies common sense.” Look for the new General Counsel to ask the Board to adopt the standard which Chairman Miscimarra proposed in his now legendary dissent in William Beaumont Hospital.
  • Cases in Which The Obama Board Expanded the Definition of Concerted Activity For Mutual Aid and Protection – In cases such as Fresh & Easy Neighborhood Market the Obama Board expanded the circumstances in which it would find an employee’s actions to be protected, holding that an employee’s actions involving a matter in which “only one employee had an immediate stake in the outcome to be protected.” Such cases must now be referred to Advice and it can be anticipated the General Counsel will ask the Board to reexamine.
  • Cases involving “Obscene, Vulgar or Other Highly Inappropriate Conduct”- The new General Counsel will be considering whether the Board went too far in holding in cases such as Pier Sixty, LLC that even where employees engaged in expletive-laden Facebook post – which hurled vulgar attacks at his manager, his manager’s mother and his family, the employee’s actions remained protected by the Act.

The Mandatory Submissions Memo also identifies each of the following as issues that must be submitted to Advice:

  • Work stoppages on employer premises;
  • The circumstances in which employers may restrict access to employer property at times when employees are off duty;
  • The recent expansion of Weingarten rights in the context of employer-mandated drug testing;
  • Employer obligations and rights with respect to wage increases during bargaining, where the increases are provided to unrepresented employees but not the employees whose wages and increases are being bargained;
  • Claims by unions that employers are successors by virtue of their hiring a predecessor’s employees as required by local laws;
  • The circumstances in which a new employer will be found to be a “perfectly clear successor” obligated to follow its predecessor’s terms and conditions rather than being free to set new terms and conditions for those it hires from a predecessor’s workforce;
  • Whether an employer must disclose and produce witness statements prior to arbitrations; and
  • Whether employers will be required to continue to honor contractual dues check off provisions after a collective bargaining agreement expires.

The New General Counsel Will Be Looking at Recent Expansions of Remedies

One of the hallmarks of General Counsel Richard Griffin Jr.’s term was an attempt by the General Counsel to expand the range of remedies that could be granted in cases where unfair labor practices were found to have occurred. This was done both through administrative action and through arguments presented before the Board.  Such expanded or enhanced remedies included requiring employers to pay unions’ bargaining expenses, providing front pay to discriminates, reimbursing employees for job search and other expenses that had never before been reimbursable under the Act.  These matters too will be subject to review by Advice under the Mandatory Submissions Memo.

Deferral To Arbitration

The Mandatory Submissions Memo states that General Counsel Memorandum 12-01, issued on January 20, 2012, which laid out new standards to be followed by the Regional Offices for determining whether the Board would defer to an arbitrator’s award, is to be withdrawn and no longer followed. The Board’s website in fact already confirms that this memo and the standards it contained were withdrawn as of December 1, 2017.  While the Mandatory Submissions Memo does not expressly say so, it appears that the Regional Offices will now once again follow the Board’s longstanding Collyer deferral standards.

Graduate Students as Employees

Also withdrawn is General Counsel Memorandum 17-01, which addressed the prior General Counsel’s position on the question of whether graduate students and certain student athletes on scholarships should be treated as employees under the Act, as well as the question of whether faculty at religious affiliated universities and colleges teaching secular subjects would be able to organize and enjoy other protections of the Act.

There is Much More To Come

The above are only some of the most interesting areas covered in the Mandatory Submissions Memo.  With just over one week remaining before the conclusion of Chairman Miscimarra’s term on December 16th, observers are expecting a large number of cases that have been briefed before and considered by the Board to be decided. No doubt the decisions of the Republican majority Board will offer further indication of the direction the Board and the General Counsel will likely pursue.

©2017 Epstein Becker & Green, P.C. All rights reserved.

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About this Author

Steven M. Swirsky labor employment lawyer health care and life sciences attorney
Member of the Firm

STEVEN M. SWIRSKY is a Member of the Firm in the Labor and Employment and Health Care and Life Sciences practices, in the firm's New York office. He regularly represents employers in a wide range of industries, including retail, health care, manufacturing, banking and financial services, manufacturing, transportation and distribution, electronics and publishing. He frequently advises and represents United States subsidiaries and branches of Asian, European and other foreign-based companies.

Mr. Swirsky:

  • Advises employers on a full range of labor and...
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