New NLRB General Counsel Memo Sets Course to Reverse Obama-Era Rulings

Author: Robert S. Teachout, XpertHR Legal Editor

December 7, 2017

A new memorandum from the National Labor Relations Board (NLRB) effectively prevents regional board officers from using discretion to pursue cases against employers based on Obama-era policies and rulings.

The memorandum from new NLRB general counsel Peter Robb requires regional offices to consult with the General Counsel's office on cases with "significant legal issues." Such cases are defined as those involving overturned precedent during the eight years of the Obama administration.

Memorandum 18-02, issued on December 1, sets forth Robb's guidelines for mandatory submission to the NLRB's Division of Advice. The memo defines "significant legal issues" to include cases that involve issues on which the NLRB overruled precedent during the last eight years and from which there were one or more dissents. Furthermore, 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" also should be referred to Advice.

The memo also instructs that cases in which prior Board decisions make complaint issuance appropriate, but in which the General Counsel might want to provide the Board with an alternative analysis of the issues, also should be submitted for "appropriate guidance on how to present the issue to the Board." Examples of such previous decisions include:

  • Findings that conduct was for mutual aid and protection where only one employee had an immediate stake in the outcome;
  • Finding no loss of protection despite obscene, vulgar or other highly inappropriate conduct;
  • Holding as unlawful common employer handbook rules prohibiting disrespectful conduct, use of the employer's trademarks or use of cameras and recording, or requiring confidentiality of workplace investigations;
  • Holding racist comments by picketers and social media postings to be protected even though the employee's conduct could violate EEO principles; and
  • Finding joint employer status based on evidence of indirect or potential control over working conditions of another employer's employees (Browning-Ferris Industries).

The memo also immediately rescinds several memos and cancels certain initiatives issued during the term of Robb's Democratic predecessor:

Cancelled Initiatives

  • Seeking to extend Purple Communications (holding that an employer may not prohibit employees from using their work email system for non-business purposes, including union organizing) to other electronic systems (e.g., internet, phones, instant messaging) if employees use those regularly in the course of their work;
  • Seeking to overturn the Board's Tri-cast doctrine regarding the legality of employer statements to employees, during organizing campaigns, that they will not be able to discuss matters directly with management if they select union representation;
  • Seeking to overturn Oil Capitol and put the burden of proof on respondent to demonstrate that a salt would not have remained with the employer for the duration of the claimed backpay period;
  • Arguing that an employer's misclassification of employees as independent contractors, in and of itself, violates Section 8(a)(1)  (unfair labor practices; however, the new memo advises regional offices to submit any case where there is evidence that the employer actively used the misclassification of employees to interfere with Section 7 activity (protected concerted activity); and
  • Seeking to apply Weingarten in non-union settings.

Rescinded Memos

  • GC 17-01 General Counsel's Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context
  • GC 16-03 Seeking Board Reconsideration of the Levitz Framework (involving circumstances under which an employer may withdraw recognition from a union)
  • GC 15-04 Report of the General Counsel Concerning Employer Rules (expanding the types of policies and work rules considered in determining whether to issue Section7 violation complaints)
  • GC 13-02 Inclusion of Front Pay in Board Settlements
  • GC 12-01 Guideline Memorandum Concerning Collyer Deferral (limiting the amount of time the Board will defer resolution of an unfair labor practice charge pending completion of an arbitration process)
  • GC 11-04 Default Language (requiring language in settlement agreements for a default procedure against a party that is unable or unwilling to fulfill settlement agreement obligations)
  • OM 17-02 Model Brief Regarding Intermittent and Partial Strikes (however, Memorandum 18-2 instructs regions to submit cases involving intermittent strikes to Advice)

In his memo, Robb stated that, to prevent delays in processing charges, cases would be processed and complaints issued according to existing law, and that the General Counsel will not be presenting new theories on cases that have been fully briefed to the Board.

Robb was sworn in as General Counsel on November 17, replacing Richard F. Griffin, Jr., whose term ended October 31. The General Counsel investigates charges, issues complaints, and prosecutes cases before the NLRB, and may review regional offices' decisions on whether to issue complaints. The General Counsel also issues memoranda providing advice to regional offices on their interpretation and enforcement decisions of the NLRA's provisions.