December 22, 2017

Reprinted with permission from Law360

On Dec. 1, 2017, the National Labor Relations Board Office of the General Counsel issued a sweeping memorandum (GC memo), signaling the agency’s new approach to many controversial rulings and interpretations from the Obama-era board. The GC memo indicates the NLRB is likely to reconsider and reverse course on key issues under the National Labor Relations Act.

This memo is the first step in what could be the wholesale reworking of Obama-era precedents. Peter B. Robb, the board’s new general counsel, issued the memo. Robb was confirmed by the Senate in November 2017 and has instructed NLRB regional offices to seek input from the NLRB’s Division of Advice before issuing complaints involving the issues outlined in the GC memo. In addition, Robb withdrew a range of prior guidance issued during the Obama administration.

GC Memo 18-02 instructs the board's regional offices to consult the Division of Advice for "alternative analysis" — rather than apply Obama-era precedent — on a host of issues. This move is likely to impact controversial issues, such as "purple communications" (holding that employees generally have a right to use employer email systems for union and other activities protected by federal law), and Lincoln Lutheran of Racine (reversing longstanding precedent and holding that dues check-offs survive expiration of a collective bargaining agreement). Additional cases that will require consultation with the Division of Advice include those involving:

• Concerted activity for mutual aid and protection where only one employee has an immediate stake in the outcome
• Protection of obscene, vulgar or highly inappropriate activity under the NLRA
• Employer handbook rules prohibiting disrespectful conduct, and use of employer trademarks and logos
• Social media postings that violate employer equal employment opportunity (EEO) policies
• Intermittent and in-plant work stoppages
• Off-duty employee access to employer property
• Confidentiality of sexual harassment and other workplace investigations
• Successorship

While most of the above issues are yet to be addressed by the board, the GC memo took immediate action to rescind board guidance on other issues, including: the ability of employers to withdraw recognition from an established union; various workplace rules; inclusion of front pay in board settlements; deferral of unfair labor practice charges to the grievance and arbitration process; and misclassification of independent contractors as an automatic violation of the NLRA.

The GC memo offers a clear indication that the winds of change are blowing at the NLRB. Indeed, within days after release of the memo — and in the days leading up to the departure of former NLRB Chairman Philip Miscimarra — the board took significant steps in its rejection of Obama-era precedent, including:

1. On Dec. 11, 2017, the board ruled in UPMC Presbyterian Shadyside to reinstate the "reasonableness" settlement standard, overruling United States Postal Service in which the board had disallowed the practice of allowing judges to accept proposed settlement terms over the objection of the GC and/or charging party if the settlement terms were "reasonable."
2. On Dec. 12, the NLRB requested information regarding representation election regulations. In this move, the board indicated its willingness to reconsider controversial “quickie election” rules that have helped unions push elections forward at unprecedented speed.
3. On Dec. 14, the board decided The Boeing Company, which overturned Lutheran Heritage and created a new balancing test for determining the lawfulness of workplace policies. The new test balances the impact a workplace rule has on workers' rights against an employer’s rationale for maintenance of the rule.
4. On Dec. 14, the NLRB overturned its Browning-Ferris joint employer test. In Hy-Brand Industrial Contractors, the board returned to the direct control standard for determining joint employer status.
5. On Dec. 15, the board decided in Raytheon Network to reinstate longstanding precedent allowing employers to change workplace policies without union permission if the changes are consistent with past practice.
6. On Dec. 15, the NLRB overturned Specialty Healthcare and the "micro-unit" principle, returning to the traditional community of interest standard when determining the appropriateness of a petitioned unit.

It is clear that the GC memo is a harbinger of change. In response, employers should be prepared to revise policies and handbooks — many of which were changed during the Obama era — and to retrain supervisors and bargaining teams on the changes, both in union and nonunion workplaces.

A critical question facing employers today is when to undertake these changes. Employers with a larger appetite for risk may decide to adopt changes in the short-term, even before the board formally reverses Obama-era precedent, banking on the fact that the board will be far less aggressive in prosecuting these issues. Eventually, such employers could be the "test case" for reversal of the Obama-era precedent. It is worth noting though — particularly for more risk averse organizations — that GC Memo 18-02 indicated that existing board law still would apply until reversed, prompting some employers to wait for the flow of new board decisions. Employers also should be mindful of the still-undecided budget for the NLRB. If the board's budget is slashed, the timeline of the board’s decisions formally reversing Obama-era precedent could be delayed.

Several issues of critical importance to employers were not addressed in the GC memo. These include the definition of a supervisor detailed in Cook Inlet Tug & Barge and Buchanan Marine LP, and the board’s position on class action waivers presently pending before the U.S. Supreme Court.

Finally, there remains the question what, if any, impact Supreme Court Justice Neal Gorsuch’s dislike of Chevron deference may have on future judicial review of board decisions. If the appellate courts follow Gorsuch’s lead and decline to give Chevron deference to board decisions that continually reverse policies with every regime change, GC Memo 18- 02 and the subsequent board decisions may not be upheld on appeal. In this scenario, the circuit courts would be giving the underlying legal issues a fresh look and making jurisprudential decisions rather than policy-driven decisions. This could benefit labor or management, depending on the issue, but also could prevent the board from about-facing on policy decisions each time a new party wins the White House.