The General Counsel for the National Labor Relations Board (the “Board”) recently revealed the Board’s policy initiatives for 2016 in a memorandum to local regional offices. The memo informs the NLRB regions which cases it considers to be of particular concern and requires that they be submitted to the Division of Advice at the Board’s Washington, D.C. headquarters so the General Counsel’s office may “provide a clear and consistent interpretation of the [National Labor Relations] Act” that is consistent with the General Counsel’s view. While the memo contains few surprises, it does offer employers a cautionary warning of possible changes to current labor law jurisprudence. Because these changes may negatively impact employers, employers would be wise to take note of its warnings.
In the memo, the General Counsel outlines 14 different labor issues that he considers top initiatives, including several of particular interest to non-unionized employers:
- Whether employees have a right, under Purple Communications, 361 NLRB No. 126 (2014), to not only use an employer’s e-mail system for union-related communications (see link to old article discussingPurple Communications) but also other company electronic systems;
- Whether employers have engaged in unlawful surveillance of employee emails;
- The applicability of Weingarten rights in non-unionized settings; (Weingarten rights provide union employees the right to have a union representative present at meetings where the employee could receive discipline. The Board previously ruled that non-union employees are not entitled to have a union representative present during such meetings. IBM Corp., 341 NLRB 1288 (2004).); and
- Whether the misclassification of employees as independent contractors violates Section 8(a)(1).
In addition, in his Report on the Midwinter Meeting of the ABA Practice and Procedure, the General Counsel highlighted some additional issues of importance, including:
- Whether a successor must bargain with a union before setting the initial terms of employment, even if it is not a “perfectly clear successor;” (Under the long-standing rule enunciated by the Supreme Court in NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1972), a successor may generally set its own initial terms and conditions of employment, provided that the employer bargain with the incumbent union over any subsequent changes to the initial terms.) and
- The handling of mandatory arbitration agreements following the DR Horton and Murphy Oil line of cases. (The Board indicated that it would continue to issue complaints if it is found that an employer has required mandatory arbitration agreements waiving class claims as a condition of employment.)
Employers should review and become familiar with the General Counsel’s list of policy initiatives. If any of the noted issues arise in your workplace, proceed with caution and consider contacting counsel. If the Board gets involved, it is possible that your case may be forwarded to Washington in order to help establish new precedent that furthers the General Counsel’s initiatives.