On December 1, 2017, the National Labor Relations Board’s (“NLRB”) newly-appointed General Counsel, Peter Robb—a former management-side labor attorney—issued an important memorandum that sets the stage for federal labor relations policy in the coming months and years. The General Counsel, who is appointed by the President to a four-year term, is independent from the five-member Board itself, and is responsible for the investigation and prosecution of unfair labor practice cases under the National Labor Relations Act (“NLRA”) and for the general supervision of the NLRB Regional Directors in the processing of cases. As such, Mr. Robb has great discretion in selecting the cases that move forward, and significant power to determine which cases come before the Board.
The memorandum, entitled “Mandatory Submissions to Advice,” GC 18-02, instructs NLRB Regional Directors on the types of cases that should be submitted to Mr. Robb’s office for advice, and also rescinds certain policy directives issued by his predecessor. For private sector employers, the memorandum offers significant insights into the Trump administration’s management-friendly labor policies and enforcement priorities.
The memorandum requests the NLRB Regional Directors to submit to the General Counsel cases that involve “significant legal issues,” i.e. “cases over the last eight years that overruled precedent and involved one or more dissents[.]” Specifically, the memorandum identifies 15 Obama-era Board precedents that the General Counsel will likely request the Board to overturn, including:
The so-called “Purple Communications Rule”—finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities;
Certain Weingarten protections—i.e., certain rights of employees to representation during investigatory interviews—including the application of such rights in the drug testing context;
Previous findings of protected, concerted activity despite the employee’s obscene, vulgar, or other highly inappropriate conduct;
Previous findings of “joint-employer status” based on nothing more than indirect or potential control over the working conditions of another employer’s employees; and
Several common employer-handbook rules previously found to be unlawful, such as rules prohibiting “disrespectful” conduct, and no camera/no recording rules.
Indeed, by December 14, 2017, the Board had already overturned the latter two precedents, as outlined in a recent K|W|W E-blast.
Importantly, the memorandum also rescinds certain Obama-era General Counsel directives, including, for example, that many employer policies on confidentiality and social media usage violate the NLRA. As a practical matter, this means that the General Counsel will no longer seek to enforce such policies as unlawful.
K|W|W will continue to monitor the General Counsel’s actions and communicate important developments. Should you have any questions regarding this memorandum, please feel free to contact Tom Green, John Hofstetter or any KWW attorney.