Executive Summary: In the past two weeks, the National Labor Relations Board (NLRB) has made three important announcements that signal likely changes to come under the Trump administration.
December 1 General Counsel Memorandum
On December 1, 2017, Peter Robb, the recently appointed General Counsel for the NLRB, issued Memorandum GC 18-02, which identifies the topics that all Regional Directors, Officers-in-Charge, and Resident Officers must send to the Advice division. The memo requires that all cases that involve “significant legal issues” be sent to Advice. Significant legal issues include (1) cases over the last eight years that overruled precedent and involved one or more dissents, (2) cases involving issues that the Board has not decided, and (3) any other cases that the Region believes will be of importance to the General Counsel. The memo then identifies 25 cases that are examples of the kinds of legal issues that the General Counsel would like to address. A few noteworthy examples of cases include:
- Pier Sixty, LLC: Finding that employees do not lose protection under the Act despite obscene, vulgar, and other highly inappropriate conduct.
- Casino San Pablo: Rules prohibiting “disrespectful” conduct by employees.
- Purple Communications: Finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 activities.
- Browning-Ferris Industries of California, Inc.: Finding joint employer status based on evidence of indirect or potential control over the working conditions of another employer’s employees.
By requesting that these issues be brought to Advice, the General Counsel has indicated that he would like to revisit these Obama-era decisions with an eye toward challenging the current rulings. This is welcome news for employers.
The General Counsel also rescinded seven prior General Counsel memoranda, including Memorandum GC 15-04. Memorandum GC 15-04 included very specific guidelines on employer handbooks, including rules on confidentiality, rules on employee conduct towards supervisors, co-workers, and third parties, rules on use of company logos, and rules on conflicts of interest (among others). Of course, rescinding Memorandum GC 15-04 does not overrule the Board decisions on which many of the guidelines contained in that memo were based. Those decisions can only be reversed by Board decisions. However, it does indicate that the Regional Directors will be less likely to pursue aggressively these types of issues.
Board Decision on Settlement of Unfair Labor Practice Charges
On December 11, 2017, the NLRB issued an important decision on settlement of unfair labor practice charges (ULPs). In 2016, the Board ruled that an administrative law judge could not settle a ULP charge over the objection of the General Counsel or charging party unless the settlement provided a “full remedy for all of the violations alleged in the complaint.” In UPMC Presbyterian Hospital, 365 NLRB No. 153 (2017), the Trump Board reversed the 2016 precedent and ruled that a judge could settle a case so long as the offer is deemed “reasonable” by the judge, even over the objections of the General Counsel and charging party. The Board noted that allowing for “reasonable” settlements provides the benefit to all parties of avoiding protracted and uncertain litigation. This decision will make it easier for parties to settle unfair labor practice charges.
Request for Information on the Board’s 2014 Election Rule
On December 12, 2017, the NLRB issued a notice that it will publish a Request for Information in the Federal Register asking for input related to the Board’s 2014 Election Rule.
The 2014 Election Rule included a number of substantial changes to the NLRB’s election process which were intended to favor unions. Most notably, the 2014 Election Rule dramatically shortened the amount of time between the date a petition for an election is filed and the date on which the election is held. Prior to the rule change, the average amount of time between the date the petition was filed and date of election was 39 days. Since the rule change, the number dropped to just 24 days. This means two fewer weeks for an employer to provide its perspective on unionization to employees. The 2014 Election Rule also included onerous burdens on employers such as providing a position statement and preparing and distributing voter lists with detailed information (including cellular telephone numbers and personal email addresses). The Board has required strict adherence to these rules and overturned elections based on minor technical violations. For more information on the 2014 Election Rule, please see our December 12, 2014, Alert.
The NLRB has asked for comments on the following questions:
- Should the 2014 Election Rule be retained without change?
- Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
- Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule’s adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?
Again, the Request for Information does not change the current Election Rule, which can only be changed through formal rule making. However, the prospect of changes to the 2014 Election Rule is good news for employers who can hope for more balanced changes to the election process.