Employment Law Report
NLRB General Counsel Reveals Agenda for Change in Board Law
On February 25, 2014, the NLRB’s General Counsel, Richard F. Griffin, Jr., issued a memorandum to Regional Directors and others in the field setting forth mandatory submissions to the Advice Section of the General Counsel’s Office in Washington, D.C.
Many of the matters cited are areas of the law that the new GC (and probably a majority of the Obama Board) wish to change. The list of matters was divided into three groups. The first group consisted of cases “that involve General Counsel initiatives or areas of the law and labor policy that are of particular concern to me.” The other areas involve difficult legal issues or cases where there is no governing precedent. The final list includes updates regarding case handling that have traditionally been slated for submission to the Advice Section, as outlined in the NLRB Case Handling Manuel.
The first list includes cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004). Current Board law (established by the Bush Board) only requires application of Weingarten rights to the union setting. That is, when an employee represented by a union is to be questioned by management, and that questioning could lead to discipline, the employee may request that a representative be present during the questioning. Previously, the Clinton Board in IBM Corp had expanded the doctrine to the non-union setting.
Thus, it appears that the new GC is going to attempt to change current Board law and will authorize issuance of complaint and require that any case in the non-union setting raising Weingarten issues must be litigated before an Administrative Law Judge and the Board in Washington, D.C.
Other areas include:
• Cases involving the issue of whether a perfectly clear successor should have an obligation to bargain with the union before setting initial terms of employment, as opposed to only narrow exceptions as enunciated in Spruce Up, 209 NLRB 194 (1974), enforced, 529 F.2d 516 (4th Cir. 1975). (see dissenting Members Fanning and Panello in Spruce Up, 209 NLRB at 199-210, as further explicated in the concurrence by former Chairman Gould in Canteen Co., 317 NRLB 1052, 1054 (1995)).
• Cases involving an allegation that the employer’s permanent replacement of economic strikers had an unlawful motive under Hot Shoppes, 146 NLRB 802 (1964).
• Cases that involve the issue of whether employees have a Section 7 right to use an employer’s e-mail system or that require application of the discrimination standard enunciated in Register Guard, 351 NLRB 1110 (2007), enf. denied in part, 571 F.3d 53 (D.C. Cir. 2009).
• Cases involving the duty to furnish financial information in bargaining where the employer has arguably asserted an “inability to pay” or where the employer has made more specific financial assertions and refused to provide information in support of those assertions (see GC 11-13 and SAM ADV 13-18).
• Cases involving make-whole remedies for construction industry applicants or employees who sought or obtained employment as part of an organizing effort as enunciated in Oil Capitol Sheet Metal, Inc., 349 NLRB 1348 (2007).
• Cases involving pre-recognition bargaining by a prospective successor with an incumbent union.
• Cases involving a refusal to furnish information related to a relocation or other decision subject to a Dubuque Packing analysis (see Liebman dissent in Embarq Corp., 356 NLRB No. 125 (2011) and OM 11-58).
• Cases where Collyer deferral may not be appropriate because an arbitration has not/will not be conducted within a year (see GC 12-01 and Collyer deferral chart on Advice/Operations webpages).
• Pre-arbitral settled and post-arbitral deferred cases involving 8(a)(1) and (3) violations (see GC 11-05 and pre-arbitral settlement chart and post-arbitral deferral chart on Advice/Operations webpages).
• Cases covered by GC Memorandum 11-01 (Effective Remedies in Organization Campaigns) where the following remedies might be appropriate: (1) access to employer electronic communications systems, (2) access to nonwork areas, and (3) equal time to respond to captive audience speeches.
• Cases covered by GC Memorandum 11-06 (First Contract Bargaining Cases: Regional Authorization to Seek Additional Remedies and Submissions to Division of Advice) where reimbursement of bargaining expenses or of litigation expenses might be appropriate.