Steven M. Swirsky
NLRB General Counsel Richard F. Griffin, Jr. has released a General Counsel Memorandum that offers an unusually frank insight into how he intends to use his office for the remainder of his term to pursue what he calls “initiatives and/or priority areas of the law and/or labor policy” to set an agenda to expand the rights of both represented and unrepresented employees and to pare back, substantially in many circumstances, the rights of employers in collective bargaining, responding to union organizing and to protect their businesses and reputations when they are attacked by employees and unions.
General Counsel Memorandum 16-01 also focuses on cases involving “difficult legal issues where the General Counsel contends “there is no governing precedent or the law is in flux.” A closer examination of this group of cases in fact reveals that the legal principles involved have been long established by the National Labor Relations Board (“Board” or “NLRB”) with the approval of the courts, but in reality the GC and former pro-union Board members have argued that the law should be changed to expand union rights or cut back on employers’ rights.
The General Counsel has now directed the Board’s Regional Offices, which investigate and process Unfair Labor Practice charges, to submit all cases in which issues identified in the Memo to the Division of Advice, the unit in the General Counsel’s Office’s Division of Advice that provides legal analysis and guidance to the Regions on cases involving complex and novel legal issues. While the Board’s Regional Directors routinely decide, after investigation of an Unfair Labor Practice charge whether a complaint should be issued, and what legal theory should be relied upon and what remedies should be pursued, in cases referred to Advice, the General Counsel’s office makes those decisions.
As the Memo explains, the General Counsel is looking for cases that will offer the opportunity for the General Counsel to seek to persuade the Board to change its interpretation of the National Labor Relations Act (the “Act”).
Types of Cases Involving “the General Counsel’s Initiatives or Policy Concerns
The Memo identifies 10 categories of cases that raise issues said to involve the General Counsel’s initiatives or policy concerns. Among the most significant to employers and others interested in what changes in the interpretation and application of the Act and precedents the General Counsel and the Board are likely to focus on in the near term can be grouped in several categories. A number of the Initiatives and/or Policy Concerns in fact call into several of these groupings.
- Initiatives and Policy Concerns Curbing Employers’ Rights
Cases involving an allegation that an employer’s permanent replacement of economic strikers had an unlawful motive – while the Board and the courts have long recognized that an employer has a right to hire permanent replacement when employees go on strike to exert economic pressure during contract negotiations provided the hiring of replacements was not in retaliation for employees engaging in conduct protected by the Act, the General Counsel’s inclusion of this category of cases in the memo is both a clear signal to unions to raise such claims when permanent replacements for strikers are hired and a strong suggestion that the General Counsel is likely to relax the existing standards for finding replacement of strikers to be a ULP. This is one of a number of cases that appear to reflect an initiative to shift the balance of power in contract negotiations towards unions.
Cases involving a refusal to furnish information related to a relocation or other decision subject to a Dubuque Packing analysis – the Memo suggests that the General Counsel is looking to expand unions’ rights when it comes to demanding that employers provide them with additional information where unions are seeking to challenge and resist employer plans to relocate unionized operations and to subcontract or outsource work performed by union represented workers.
Cases involving questions of whether an impasses over a single issue should constitute overall impasses because the issue is critical to one of both of the parties – this suggests the General Counsel intends to ask the Board to make it more difficult for an employer to declare an impasse in collective bargaining, which is a prerequisite to its implementing its last, best and final offer.
- Initiatives and Policy Concerns Making It Easier for Unions to Organize
Cases that involve the application of Purple Communications to electronic systems other than email, cases where the employer has provided specific evidence of special circumstances privileging a denial of access to its email system, and when the Board issued its December 2014 decision in Purple Communication holding that in almost all instances in which employers granted their employees access to and use of company email systems, the Board noted that it was not addressing whether by the same reasoning employers would also be deemed obligated to allow workers to use other employer property and systems for union organizing and other protected concerted activity. The General Counsel Memo makes clear that he is now looking for charges from unions and employees that will allow him to present the question to the Board and urge for an extension of Purple Communication to other employer property. This could include text and other communication systems as well as conceivably the right to hold in person meetings for non-work purposes on an employer’s premises.
Cases presenting the question of whether the employer engaged in unlawful surveillance of employee emails – while the majority in Purple Communication held that employers may be able, in certain circumstances, to restrict or prohibit the use of the systems for communications concerning terms and conditions where such a restriction is necessary to “maintain production and discipline,” it also made clear that the burden is on the employer to establish why such a prohibition or restriction is necessary. The Board has stated, while an employer may rebut the presumption (of the right to use the email systems) “by demonstrating special circumstances necessary to maintain production or discipline justify restricting its employees’ rights,” the burden will be steep and that “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees,” and an employer seeking to meet that burden “must demonstrate the connection between the interest it asserts and the restriction.” The General Counsel is now directing the Regional Directors to refer all cases in which this question arises to the Division of Advice, for close scrutiny and to identify cases in which the General Counsel can argue just how narrowly the standard should be applied and the burdens an employer will need to satisfy.
Cases involving the whether extraordinary remedies such as access by non-employees to employer electronics communication systems , access by non-employees such as union organizers to work areas and providing unions with “equal time” to respond to employer “captive audience” speeches prior to representation elections – this should be viewed in the context of the General Counsel’s interest in expanding Purple Communications beyond email systems; the General Counsel initiative should also be recognized as an effort to further change the way representation elections have changed under the “ambush election rules” that took effect in 2015.
- Initiatives and Policy Concerns Expanding Rights of Unrepresented Employees
Cases involving the applicability of Weingarten principles in non-unionized settings – today, under the Board’s Weingarten doctrine, union-represented employees have the right to request the presence of a shop steward, delegate or other union representative in investigatory interviews that have the potential to result in discipline. Except for a brief interlude after the Board followed its 2004 IBM Corp. decision, that right was only afforded to those represented by a union. By directing the Regional Offices to refer this category of cases to the Division of Advice, the General Counsel reveals his intention to ask the Board to expand Weingarten to unrepresented employees.
Cases involving allegations of “English-only” policies – The General Counsel appears likely to argue that a rule limiting employees to speaking English is an unlawful interference with the right to engage in concerted protected activity.
Cases involving the employment status of workers in the on demand economy and Cases involving the question of whether the misclassification of employees as independent contractors violates Section 8(a)(1) – the General Counsel appears likely to argue that classifying an individual as an independent contractor when the General Counsel believes the worker should actually be considered as an employee inherently denies him or her the right or ability to engage in concerted protected activities concerning terms and conditions of employment. This appears to be but one aspect of the General Counsel’s intention to pursue cases involving the gig and on demand economy. We expect this to also reflect an effort to expand the application of the Board’s August 2015 Browning-Ferris Industries decision expanding the definition of joint employer.-
For additional insights concerning the General Counsel’s initiatives and goals as identified in General Counsel Memo 16-01, we suggest viewing the April 18, 2016 edition of Employment Law This Week.
We will continue to follow and report on the effort of the Board’s General Counsel to implement the initiatives identified in this GC Memo.