What’s Next at the NLRB? Ask the General Counsel!
April 22, 2016
On March 22, 2016, National Labor Relations Board (NLRB) General Counsel Richard Griffin released Memorandum GC 16-01, entitled "Mandatory Submissions to the Division of Advice." The memorandum instructs the Board's regional attorneys to submit certain high profile cases to the general counsel's Division of Advice before taking action. As such, the memorandum reflects those priority areas in which the general counsel is likely to seek to change the law.
From the large laundry list of topics covered in the general counsel's memorandum, it's clear that the NLRB is far from scaling back on issuing future decisions that will overturn long-standing legal precedent. In fact, if the general counsel's memorandum is a roadmap for the future, perhaps the better question is not "What's next at the NLRB?” but "What's not next?"
Employers and their counsel should watch for future developments in the following areas because Board law may be changing.
Permanent replacement of economic strikers. The general counsel is looking for cases involving allegations of unlawful motive when employers hire permanent replacement workers during economic strikes in order to restrict or distinguish long-established Board and Supreme Court precedent dating back to the 1930s. Under current law, returning economic strikers may be placed on a preferential rehire list but are not entitled to be automatically rehired at the conclusion of the strike, whereas long-term replacement workers are entitled to continued employment. This contrasts with the law regarding unfair labor practice strikes where an employer is alleged to have acted unlawfully. In the case of an unfair labor practice strike, returning strikers must be rehired and replacement workers let go to make room for returning strikers.
Ever since Congress rejected a striker-replacement bill in the 1990s that would have prohibited the hiring of long-term striker replacements, unions have been searching for ways to distinguish the Supreme Court's decision in Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), which established the legal precedent for the permanent replacement of economic strikers. In Memorandum GC 16-01, the general counsel apparently is looking for ways to distinguish Mackay Radio and to restrict or overturn the Board's 1964 decision in Hot Shoppes, Inc., 146 NLRB 802, which reaffirmed an employer's right to hire permanent replacement workers for economic strikers without regard to motive.
Weingarten rights in non-unionized settings. The general counsel is looking for cases in which employees in nonunionized settings request union or coworker representatives be present in workplace investigatory meetings that might lead to discipline. Employees in unionized settings are entitled to the presence of a union or coworker representative under Board and Supreme Court precedent in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975). This determination has flip-flopped four times since Weingarten was decided. The Board's most recent decision in IBM Corp., 341 NLRB 1288 (2004), which the general counsel apparently seeks to reverse, applies "Weingarten rights" only in unionized settings.
Expanded access to employer's electronic systems for purposes of union solicitation. The general counsel is looking for cases to expand the Board's decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), beyond allowing access to an employer's email system for the purpose of union solicitation, to allow access to a broader group of electronic systems where the employer has provided evidence of "special circumstances" privileging denial of access. The general counsel also is looking for cases that allege an employer's unlawful surveillance of employee emails.
Expanded remedies against construction employers. The general counsel is looking for cases to overturn the Board's decision in Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007), and expand remedies available for construction industry "union salts," and other applicants for employment.
Refusal to furnish information related to relocation. The general counsel is looking for cases involving an employer's refusal to furnish information on relocation or other decisions privileged from disclosure by the Board's decision in Dubuque Packing Co., 303 NLRB No. 66 (1991). Apparently, the goal is to adopt former Board Member Wilma Liebman's reasoning in Embarq Corp., 356 NLRB 125 (2011).
Adequacy of discriminatees’ searches for interim employment. The general counsel is looking for cases to overturn the Board's decision in St. George Warehouse, 351 NLRB 961 (2007) and instead place the burden on the employer to show that a discriminatee failed to make an adequate search for interim employment.
Misclassification of employees as independent contractors. The general counsel is casting a wide net for cases in which misclassification of employees as independent contractors would violate Section 8(a)(1) of the National Labor Relations Act (NLRA).
Contractor's employees access to owner's premises. The general counsel will seek to clarify and expand the Board's decision in New York New York Hotel and Casino, 356 NLRB No.119 (2011).
Precontract bargaining over employer disciplinary decisions. The general counsel is anxiously looking for a vehicle to restore the Board's decision in Alan Ritchey, 359 NLRB No.40 (2012) (invalidated for lack of a Board quorum by the Supreme Court in NLRB v. Noel Canning). He has asserted that the Board's original decision in Alan Ritchey should be readopted, and employers should be required to provide newly-certified unions with notice and an opportunity to bargain over disciplinary decisions, even before a first contract is executed.
Employer statements during a union organizing campaign. The general counsel will attempt to apply the Board's decision in Tri-Cast, 274 NLRB 377 (1985) to statements commonly made by an employer. This would limit employees’ access to their employer if the employee were to select union representation.
“English-Only” policies. The general counsel is looking for cases to assert that an employer's “English-only” policy violates Section 8(a)(1) of the NLRA.
The status of workers in the on-demand economy. Finally, Memorandum GC 16-01 notes that the general counsel is looking for cases involving the employment status of workers in the on-demand economy.
The selected issues listed above from Memorandum GC 16-01 reflect the intention of the NLRB's General Counsel to push the envelope to change Board law in many areas. Of course, these and other issues will form the basis for complaints seeking to change the law when presented to the Board for decision, even where the charged employer is in full compliance with extant Board law.
One reason this list is significant, therefore, is that, for government contractors, the currently proposed "blacklisting" regulations implementing Executive Order 13673 "Fair Pay and Safe Workplaces" include the mere issuance of NLRB complaints as "administrative merits determinations" subject to contractor reporting as labor law violations for purposes of eligibility for the award of federal contracts. If the laundry list of issues in Memorandum GC 16-01 is any indication, future "push the envelope" complaints will impede contractors’ eligibility for awards of federal contracts even where the contractor is in full compliance with Board law.