A recent Memorandum from Peter B. Robb, the NLRB’s newly installed General Counsel, reminded me of a stanza from Lewis Carroll’s The Walrus and The Carpenter. To paraphrase: “The time has come” the GC said, “To talk of many things: Of handbook rules and Weingarten, of email use and salt-ings.” Though perhaps not as prosaic, the GC’s December 1 Memorandum presages his intent to take Board law back through the looking glass and review all issues overruled by the Obama Board.
The Memo – which new GCs typically issue at the start of their terms – mandates that all Regional Offices seek guidance from Advice before issuing complaints on “significant legal issues,” shorthand for subjects about which the Board overruled precedent during the last eight years. This appears to be the GC’s way of putting the brakes on the application of Obama Board precedents that have been widely viewed as overreaching.
Just in time for the holidays, the GC’s Memo recites is an employer’s wish list of Board rulings to be overturned or revisited:
- A presumptive right of employees to use employer email systems for Section 7 activities;
- Employer handbook rules found be unlawful that barred “disrespectful” conduct, use of employer intellectual property, and workplace recording;
- Finding protected activity was concerted where only one employee had a stake in the outcome, or where the activity involved obscene or vulgar conduct;
- Broad expansion of the Weingarten right;
- Joint employer and successorship issues;
- An employer duty to provide witness statement to unions;
- And so much more!
Besides identifying issues of focus for potential complaints, the Memo also immediately withdraws a number of prior GC memoranda. Most notably, the GC has withdrawn GC Memo 15-04, “Report of the General Counsel Concerning Employer Rules,” which vexed many employers who scrambled to review and revise their seemingly innocuous handbooks in an often vain attempt to ensure that employees could not reasonably construe them in a way that would chill their NLRA-protected activity.
Finally, the Memo also halted initiatives of the prior administration, such as application of the Weingarten doctrine to non-union workplaces, and an effort to shift the burden of proof in cases involving back pay for salts.
A full analysis of the Memo and its potential implications – both immediate and in the future – is beyond the scope of this post. However, the Memo confirms the expectations of employers, unions and advocates on both sides: the pendulum is on the backswing and the Board is eager to correct the imbalance created over the past eight years.
Justin Schwam is an associate in the firm’s Labor and Employment Department, resident in its Morristown office.