Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo setting forth a wide range of issues that must be submitted to Advice before Complaints will be authorized. Generally these issues involve areas of the law where the “Obama Board” issued decisions departing from previously established precedent. The memo strongly suggests that instead of declining to exercise prosecutorial discretion not to issue Complaints where the General Counsel disagrees with the legal principles announced in these decisions, he intends to given the newly constituted Board the opportunity to assess these legal principles as the opportunity arises. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Today’s blog looks at controversial changes with respect to work stoppages. Click here to find prior posts.

In Quietflex Manufacturing, 344 NLRB 1055 (2005), Member Liebman dissented from a decision that an employer did not violate the Act by discharging 83 employees for refusing to vacate its parking lot where those employees had engaged in a peaceful 12-hour work stoppage to protest their terms and conditions of employment. The majority had held that under relevant precedent, while an on-the-job work stoppage can be a form of economic pressure protected under Section 7 of the National Labor Relations Act, not every such work stoppage is protected and that “[a]t some point an employer is entitled to exert its private property rights and demand its premises back,” citing Cambro Mfg. Co., 312 NLRB 634, 635 (1993). Applying a 10-factor test,[1] the majority determined that in balancing employee interests against the employer’s property interests, the employer’s interests prevailed. In her dissent, Member Liebman asserted that the balance struck by the majority seemed unreasonable and implicitly argued that heavier weight should have been given to those factors that tended to favor protection.

Member Liebman’s views were essentially adopted by the Obama Board in a series of cases, Los Angeles Airport Hilton Hotel & Towers, 360 NLRB 1080 (2014), enf’d Fortuna Enterprises, LP v. NLRB, 789 F.3d 154 (D.C. Cir., 2015); Nellis Cab Company, 362 NLRB No. 185 (2015); and Wal-Mart Stores, Inc., 364 NLRB No. 118 (2016). In each of these cases the majority purported to apply the Quietflex multi-factor balancing test and found that the activity at issue was protected. While Member Johnson concurred with the result in Los Angeles Airport Hilton, he disagreed with respect to several aspects of the majority’s analysis of the Quietflex factors, particularly with respect to the failure of the majority to give what he considered to be proper weight to the employer’s open door policy as an alternative means for employees to present their grievances.

In dissenting in part in Wal-Mart, Member Miscimarra found that the activity in question constituted a modern day sit-down strike and on-premises protest by employees inside a retail store before and during the store’s grand reopening that was clearly unprotected under the “disruptive or interference standard” applicable in a retail setting, citing Restaurant Horikawa, 260 NLRB 197 (1982). He further noted that even assuming that the Quietflex factors were applicable, he disagreed with the majority’s analysis under the Quietflex standards. The essence of his disagreement, set forth in a lengthy and detailed dissent, was that the majority had either misapplied the standards or misconstrued or given inappropriately heavier weight to those factors that tended to favor protection.

For example, with respect to the third Quietflex factor, whether the work stoppage interfered with production or deprived the employer access to its property, contrary to the majority’s conclusion that this factor favored protection, Member Miscimara believed this factor “weighs against protection and does so heavily.” (Slip op. at p. 15.) In his opinion, the record clearly established that “the employees’ actions caused substantial disruption and interference, including an adverse impact on customers.” (Id.)

In our view, Member Miscimara’s views with respect to the applicability and construing of the Quietflex standard and the weight to be given the various factors is better reasoned from both a legal and practical perspective. General Counsel Robb’s memo suggests that he may agree, possibly giving employers – and particularly retail employers – something to look forward to in 2018.