Many of the NLRB initiatives established during the previous administration could soon be no more.
On December 1, 2017, the new NLRB General Counsel, Peter Robb, issued a memorandum that rescinded numerous memorandums and initiatives of his predecessor, and set forth the types of future charges that should be submitted to his office for advice. Highlighting the list of the seven expressly-rescinded memorandums are:
- GC 11-04 (Default Language). This 2011 memo instructed all NLRB Regional Offices to include certain “default language” in all informal and compliance settlement agreements that provided that if the Charged Party/Respondent failed to comply with the terms of the settlement agreement, the underlying complaint would be re-issued and summary judgment would be entered in favor of the GC. The only issue that could be raised to the Board is whether the Charged Party/Respondent, in fact, defaulted on the terms of the settlement agreement.
- GC 12-01 (Guideline Memorandum Concerning Collyer Deferral). This 2012 memo changed the previous deferral policy, directing NLRB Regional Offices to stop deferring Section 8(a)(1) and (3) cases where arbitration will not be completed within a year. If the grievance arbitration was not likely to be completed within one year and deferral was deemed inappropriate, the Region was instructed to conduct a full investigation on the merits of the charge.
- GC 13-02 (Inclusion of Front Pay in Board Settlements). Under this 2013 memo, front pay was allowed to be included in the terms of Board settlement agreements. Historically, because of the Board’s preference for reinstatement over front pay, the Board did not allow front pay as a remedy in remedial orders.
The new GC memo also rescinded GC 15-04, GC 16-03, GC 17-01, and OM 17-02.
Likewise, the memo invalidated five past initiatives, including initiatives seeking to extend Purple Communications to other electronic communications, overturn the Tri-cast doctrine, and apply Weingarten in non-union settings. The rescission of these prior initiatives and memorandum indicate a likely shift to a more employer-friendly GC.
In addition, the new GC memo provides direction and nearly three pages of example issues that NLRB Regional Directors should submit to the GC Office for advice. The example issues include:
- Concerted activity for mutual aid and protection. The GC memo seeks cases that address (1) whether there is concerted activity for mutual aid and protection despite there being only one employee with an immediate stake in the outcome (e.g., Fresh & Easy Neighborhood Market, 361 NLRB No. 12 (2014); and (2) whether there is a loss of protection when there is obscene, vulgar, or other highly inappropriate conduct (e.g., Pier Sixty, LLC, 362 NLRB No. 59 (2015).
- Common employer handbook rules found unlawful. The GC memo seeks cases addressing many common employee handbook issues, such as “disrespectful” conduct, recording rules, confidentiality, etc. We have previously posted on the NLRB’s relentless attack on handbooks, and it now appears change could be coming.
- Purple Communications. The GC memo seeks cases addressing the holding of the Board’s decision in Purple Communications, 361 NLRB No. 126 (2014), that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities.
- Joint Employer. The GC memo seeks cases addressing the Board’s expanded joint employer doctrine expounded in Browning-Ferris Industries, 362 NLRB No. 186 (2015), that found joint employer status may be based on indirect or potential control of another employer’s workers, even if direct and immediate control is not exercised.
Given the management-side background of the newly-appointed GC, as well as the other newly-appointed Board members, the GC memo could be signaling the specific issues that will be a priority for the GC to present to the Board to either amend or overrule. This will likely include a rollback of several union-friendly decisions.
Please reach out to your Baker McKenzie lawyer for more details.