“I’m not crazy. My reality is just different than yours,” quotes the Cheshire Cat in Alice in Wonderland. And so it may be said of the National Labor Relations Board (NLRB) – particularly over the past eight years or so.
At some time in the past the NLRB was deemed the peacekeeper between management and organized labor – hopefully a fair mediator between business and labor. In the recent past though, this agency had turned openly pro-labor as evidenced by the issuance of such rule changes as the Quickie “Ambush” Election rules and a myriad of NLRB decisions challenging previously innocuous, non-union employer policies and rules. The NLRB now labels itself a “workers’ rights” agency.
However, this agency aligns with the party stripes of the White House. With the installation of a new NLRB General Counsel and the impending turnover of the Obama NLRB Board appointments, the Cheshire Cat is expected to change his stripes.
Upon election of President Obama, the NLRB moved firmly to affect change to NLRA practice and policy. They went “way upstream” into non-union companies by challenging handbook rules. The now pro-labor NLRB was viewed as anti-union and working against the right of workers to engage in collective, concerted activity on their own behalf. In 2015 its then General Counsel, Richard F. Griffin Jr., published Memorandum GC 15-04 that summarized many the NLRB’s new rulings on previously innocuous employment policies/rules and made them illegal.
Some of the handbook rules/policies that were deemed unfair labor practices/illegal by the Obama NLRB were:
Rules prohibiting “disrespectful” conduct particularly toward supervisors.
Rules that prohibit or restrict “negative” or “inappropriate” discussions among employees and “insulting” or “embarrassing” comments toward other employees.
Rules against “making or publishing false or malicious statements about the employer.”
Rules prohibiting speaking with the media or government agencies about the employer or company matters.
Rules prohibiting the use of camera/ recording equipment
Rules requiring employees maintain the confidentiality of workplace investigations.
Rules against employee’s right to use the employers own email system to organize.
“If it was so, it might be; and if it were so, it would be, But as it isn’t, it ain’t. That’s logic.” Said Tweedledee in Alice in Wonderland.
This month (December 1, 2017) the new NLRB Attorney General Peter Robb issued Memorandum GC 18-02 that is a first step possibly, toward marching the NLRB and its policies back to a “different reality.”
The Memorandum directed the agency to follow a new set of orders;
Decisions will be based upon “extant law.” “No new theories will be presented on cases that have been fully briefed.”
The General Counsel will not be offering new views on pending cases in the courts, unless directed to by the Board or the courts.
Cases that involve significant legal issues will be submitted for review to the Advice department of the NRLB. Specifically, those cases over the last eight years that have overruled precedent and involved one or more dissents, cases that the Board has not decided and any other cases the Region believes will be of importance to the General Counsel.
Fourth, the new GC rescinded several GC memos including the now infamous GC 15-04 that has so changed employer policies and rules over the past eight years.
“Well, I’ve often seen a cat without a grin, but a grin without a cat. It’s a most curious thing.” said Alice in Alice in Wonderland.
As Frank Mamat writes below, the NLRB does not immediately change directions with the issuance of this memo. It is not like a new or changed regulatory rule. The new General Counsel Memo can be an internal guideline as to what position the NRLB will take on certain Board rulings of the past several years.
Frank Mamat, Partner with Foster, Swift Collins and Smith Labor Group and former NLRB Attorney talks about what the NLRB’s General Counsel may be doing with this Memo:
As an NLRB alumnus, it is interesting that the new General Counsel of NLRB appointed by President Trump (Peter Robb), has attempted to use the vehicle of the Division of Advice as a way of subtly trying to undo the anti-employer, pro-union, pro-employee decisions of the last eight years of the Obama era–NLRB.
The General Counsel’s Memo does a couple of interesting things which my colleague, Michael Burns, speaks to above. The interesting part is that General Counsel Robb makes a big deal out of requiring the regions around the country that administer and enforce the National Labor Relations Act to submit any questions raised by his Memo to the Division Advice in Washington. At the same time, he states in his December 1st Memo that he is rescinding a number of prior General Counsel’s Memos. The Division of Advice is a small Division within headquarters in Washington which has historically been populated by attorneys who love to research arcane and abstract concepts. This is not a criticism, just a fact that these people study and research the law but seldom if ever actually enforce or litigate issues under the National Labor Relations Act. In fact, in the years that I was there, it was and, to some extent I’m sure still is, where many NLRB attorneys thought cases and legal issues went to die – since they might not ever be seen again or not for many weeks, months or even years. Knowing this, it seems a little cynical for General Counsel Robb to indicate that there are any future significant issues when General Counsel’s memo indicates that cases that “involve significant legal issues should be submitted to Advice.” He then goes on to state that significant issues include cases that over the last eight years overruled established precedent, especially those that had vigorous dissenting opinions.
Again, as somebody who worked at the NLRB, I find this somewhat humorous or troubling (I’m not sure which) since Advice is not a large unit and historically does not move with great speed. So the downside to businesses that were looking forward to a Trump NLRB may be that since General Counsel Robb indicates he is not automatically, nor can he overrule written case law by the Obama Board (but can rescind prior General Counsel initiatives and Memorandum), employers should understand that for the time being and, for the foreseeable future, NLRB changes and decisions established over the last eight years are still the law of the land. And as I have indicated throughout, it may be problematic that General Counsel Robb is expecting Advice to give timely guidance to the NLRB Board members, General Counsel’s office, and/or Regional offices around the country given their long track record of studying an issue until the ink falls off the paper.
Source: NLRB General Counsel Memorandum GC18-02 12/1/2017. DSHRM Legal Update NLRB's New General Counsel Targets "Significant Issues" To Rein in Obama Era Rulings By: Julia Turner Baumhart, Kienbaum Opperwall, Hardy and Pelton, PLC
Frank Mamat is Chairman of Foster Swift Collins & Smith Labor & Employment Group, consisting of 20 experienced attorneys in seven Michigan cities. Mamat worked in the General Counsel’s Office of the National Labor Relations Board in Washington D.C. from 1975 to 1979 and was nominated by President George W. Bush to be Chairman of the NLRB in 2001.