NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices.

The Acting Chair’s Position On the Board’s 2014 Amended Election Rules – The Emphasis On “Speed Above All Else” is Inconsistent With the Law

In a strongly worded dissent in European Imports, Inc., 365 NLRB No. 41 (February 23, 2017), the Acting Chair took issue the majority’s decision to deny an Employer’s Emergency Request for Review, that sought to postpone and reschedule a representation election scheduled to take place only three days after a significant number of the employees who would be eligible to vote approximately 25%, learned that they were included in the bargaining unit, and would be affected by the outcome of the vote.

In its Emergency Request, the employer urged the Board to postpone the election by a week, to endure that the employees would know whether they would be eligible to vote and if they were, to allow them to get the facts and make an informed decision when they voted. It also argued that holding the election so soon after the issuance of the Direction of Election “would deprive many employees of sufficient notice that they would be voting in election that would dictate whether they would have union representation.”

Disagreeing with the decision of Members Mark Pearce and Lauren McFerran to deny the employer’s Emergency Request without comment, Miscimarra took issue not only with the denial of this Request, but more broadly, with the Board’s 2014 Amended Election Rule (the “Rule”) and its “preoccupation with speed between petition-filing and the election,” the Rule’s “single-minded standard” calling for “every election (to be) scheduled for ‘the earliest date practicable . . .”

Miscimarra reiterated his position, as expressed in his dissent to the Board’s adoption of the amended Election Rule in 2014, that such an emphasis on speed above all else is inconsistent with the Board’s duty under the National Labor Relations Act “to assure to employees the fullest freedom in exercising the rights guaranteed” by the Act.

The Acting Chair again called for the Board to establish “concrete parameters” for the scheduling of elections that would ensure “reasonable minimum and maximum times between the filing of a representation petition and the holding of an election.”

In addition to addressing issues of timing, Miscimarra also took issue with the fact that during the representation hearing preceding the Direction of Election. The Board’s Regional Director had refused to permit the employer to present evidence and develop a record as to why it was being prejudiced in this case by the 2014 Amended Election Rule. The Regional Director ruled that because earlier judicial challenges to the facial validity of the Election Rule had been dismissed, the employer could not litigate the actual prejudice the Rule caused in this case.

Miscimarra made clear that in his view, the fact that earlier facial challenges to the Amended Election Rule had been dismissed, questions as to the validity of the Rule, when applied to specific facts remains open and that it is a “clear error and an abuse of discretion” to deny an employer the opportunity to litigate such issues when they arise.

The Acting Chair’s Position On the Obama Board’s Handbook and E-Mail Decisions

In another dissent in Verizon Wireless Inc., 365 NLRB No. 38 (February 24, 2017)  Miscimarra reiterated his strong dispute with the way in which the Obama Board has analyzed and decided cases challenging employee handbooks and policies, writing that Board’s current standard for deciding such cases “defies common sense.”

Under the Board’s 2004 Lutheran Heritage standard, the Board will find a handbook provision or policy to violate the Act and unlawfully interfere with employees’ rights to engage in concerted, protected activity if which in part rendered work rules and handbook provisions unlawful if employees “would reasonably construe” them to prohibit protected activities under Section 7 of the Act.

The Acting Chair reiterated his view, as explained in his lengthy 2016, dissent in William Beaumont Hospital, 363 NLRB No. 162, that the Board’s current test is unworkable, and fails to adequately recognize employer’s legitimate needs of employers. Calling on the Board and the Courts to overturn and reject the Lutheran Heritage standard, Miscimarra urged the adoption in its place of a new balancing test that would not only focus on employees’ rights under the Act, but that would also take into account employers’ legitimate justifications for a particular policy or rule, such as attempting to avoid potentially fatal accidents, reduce the risk of workplace violence or prevent unlawful harassment.

Miscimarra also took direct aim in his dissent at the He also wrote that he believes the Board should overturn its Purple Communication decision allowing employee virtually unfettered use of employer email systems and return to the former standard in Register Guard, which recognized that such systems are employer property and should be recognized as such. The dissent described the standard under Purple Communications as “incorrect and unworkable,” and called for a standard that would once again recognize “the right of employers to control the uses of their own property, including their email systems, provided they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines.”

What This Means for Employers

As we noted when the President appointed then Member Miscimarra to serve as Acting Chair of the Board, meaningful change in how the Board interprets and applies the Act will not come until the two vacant seats are filled and a new majority is able to act. Additionally, current General Counsel Richard F. Griffin, Jr.’s term runs through August 4, 2017.

We expect change to come as ULP issues get before the Board. It is to be expected that any new Members appointed by the President will almost certainly share Acting Chair Miscimarra’s views on such issues as use of employer email systems and the review and enforcement of workplace rules, handbooks and the like.  A new balancing test such as that proposed in the Beaumont Hospital dissent is quite foreseeable.

Concerning the Amended Election Rule, things are a bit trickier. The Rule itself was the result of formal rule making, with public comment and input after the Board published its proposed Rule in the Federal Register.  Major changes in the Rule itself would require a new Board to follow the same processes, which are quite lengthy. However, there is certainly room, as Miscimarra’s dissent in European Imports demonstrates, for the Board to make changes in how it administers and processes cases even under this Rule, before any change to the Rule itself becomes effective.  The Acting Chair’s comments concerning the right of employers and other parties to due process, including the right to develop a complete factual record on disputed, material issues is something that can be changed through the administration and application of the Rule even without formal change.  So to, it would not be surprising for a new General Counsel to give guidance to the Board’s Regional Offices calling for them to apply their discretion to avoid circumstances like those that triggered the Emergency Request in European Imports to make sure that there are no more “three day elections.”

Periods such as this, where there is transition in interpretation and enforcement, are challenging but in reality they have been a part of the history of the enforcement and application of the Act for more than 80 years.  Students of the Board often speak of a pendulum and the need for those with business before the Board to try to anticipate its swings.  Careful consideration of not just what the “law” is now, but also what it is likely to be going forward will now once again be the watchword.

 

Steven M. Swirsky
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.

The recent decision by the National Labor Relations Board (“NLRB” or the “Board”) in Blommer Chocolate Company of California (PDF) addresses one of the issues left open in the wake of the Board’s earlier ruling in Purple Communications, Inc. – namely, the extent to which an employer may regulate the content of its employees’ emails sent over the workplace email system.  In Purple Communications, the Board concluded that an employee who is permitted to use the employer’s email system for non-work purposes is presumptively permitted to use that email system (during non-work time) to communicate with others about union-related issues.  While the Board did preserve an employer’s right to monitor its email system for “legitimate management reasons,” such as ensuring productivity or preventing harassment, it did not expressly define the contours of an employer’s ability to regulate the content of employees’ emails sent over the workplace email system.

In Blommer Chocolate Company of California, the Board addressed this very issue, and concluded that a work rule that allowed employees to use their work computers for personal reasons but prohibited them from expressing any personal opinions in their emails was impermissibly overboard.  The Board further concluded that this objectionable work rule (along with two others) interfered with a representation election, and directed that a second election take place.

Given the somewhat extreme nature of the work rule at issue in Blommer, the Board did not engage in much analysis before finding it overbroad.  Nonetheless, this decision demonstrates the Board’s willingness to review (and potentially invalidate) employers’ attempts to regulate or control the content of emails exchanged over the workplace email system.  It remains to be seen whether the Board will scrutinize an employer’s email usage rules in the same way that it has reviewed corporate social media policies in the last few years.  For example, will a work rule prohibiting an employee from using profanity in emails sent over the workplace email system be found to unlawfully restrict employees’ statutorily protected communication rights?  Indeed, as the Board and Second Circuit have recently made clear, employees’ Facebook and social media activity does not lose its protected status merely because it contains profanity.  Similarly, would work rules that attempt to regulate employees’ tone over email, or instruct employees to remain mindful that their communications reflect on their employer’s image withstand Board scrutiny?

As this area of the law continues to develop, employers should review their existing policies and practices regarding their employees’ use of the workplace email system, and give particular consideration to any policies or practices that restrict, regulate, or otherwise limit the content of employees’ emails.