New Labor Board General Counsel Issues Plans for Reversing Course

December 11, 2017

In a sweeping five-page Memorandum, new National Labor Relations Board (NLRB) 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), 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.

Griffin Initiatives Also Rescinded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".

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

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.