Sea Change in Store for the NLRB in 2018

    The newly-confirmed General Counsel[1] of the National Labor Relations Board (“NLRB”), Peter B. Robb, issued a Memorandum that signals sweeping, management-friendly changes for the NLRB’s Office of the General Counsel.[2] In his Memorandum, the General Counsel announced a wide-range of cases that must be sent to the Division of Advice (which provides guidance on “difficult and novel issues”),[3] for re-analysis. These cases include those frequently brought against non-unionized employers over the past several years, in which:

• an employee’s obscene, vulgar, or other highly inappropriate conduct is alleged to be protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA” or “Act”);[4]
• facially-neutral, seemingly innocuous workplace rules (i.e., rules prohibiting use of employer trademarks and logos, rules prohibiting cameras and recording, rules prohibiting “disrespectful” conduct, and confidentiality rules) are alleged to violate Section 7 of the Act;
• employees claim they have a presumptive right to use their employer’s email systems to engage in Section 7 activities; and
• an entity that exerts only indirect or potential control over another employer’s employees is alleged to be a joint employer.

    General Counsel Robb additionally rescinded several Memoranda issued by the previous General Counsel, Richard F. Griffin, Jr. (known as “GC Memos”), including:

• the 2017 GC Memo concluding that university teaching and research assistances were employees for the purposes of organizing and unfair labor practices, and that university scholarship athletes were considered employees under the Act;
• the 2015 GC Memo setting forth examples of lawful and unlawful employee handbook rules concerning confidentiality, respectful conduct, use of company logos and trademarks, and use of recording devices and cameras; and
• the 2011 GC Memo concerning default language in settlement agreements.

    The General Counsel’s Memorandum signals a true sea change at the General Counsel’s office. The change in direction is likely to bring relief to employers who faced intense scrutiny in the past several years. Campbell Litigation will carefully follow and report on developments in 2018.

[1] The NLRB’s General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases. (See https://www.nlrb.gov/who-we-are/general-counsel.)

[2] Memorandum GC 18-02 (Dec. 1, 2007), available at file:///C:/Users/Daniel%20Combs/Downloads/GC%2018_02%20Mandatory%20Submissions%20to%20Advice.pdf%20(2).pdf.

[3] See https://www.nlrb.gov/news-outreach/news-story/jayme-l-sophir-lead-division-advice.

[4] Section 7 of the NLRA protects the rights of employees to form or join unions, bargain, or otherwise engage in concerted activities for their mutual aid or protection, and also protects the right to refrain from such activities. NLRA § 7, 29 U.S.C. § 157.