The National Labor Relations Board’s General Counsel appears intent on convincing the Board to change its precedent in at least two key areas. According to the General Counsel’s February 25, 2014, Operations Management Memorandum, “Mandatory Submissions to Advice,” unfair labor practice charges involving the Board’s Register Guard decision and charges involving applicability of Weingarten principles in non-unionized settings must be submitted to the General Counsel’s Division of Advice in Washington, D.C., by the NLRB’s Regional offices. (See General Counsel’s February 25, 2014, Operations Management Memorandum, “Mandatory Submissions to Advice“.)
The GC’s insistence on mandatory submissions of cases involving Register Guard or non-union Weingarten facts suggests the General Counsel may be ready to argue for reversal of the law in such cases. The 2007 Register Guard decision (351 NLRB 1110) held that employers could bar employees from using company e-mail systems for union organizing. (The Board also provided a new employer-friendly framework for analyzing whether an employer has discriminated against union activity.) The Supreme Court’s 1975 decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251, held that unionized employees were entitled to the assistance of their union representative during investigative interviews by their employer that the employee reasonably believed might lead to his discipline. However, the Board has seesawed on the issue of whether Weingarten also should apply in non-union settings. The Board held Weingarten applicable in non-union settings in Epilepsy Foundation, 331 NLRB 676 (2000), but subsequently reversed itself in IBM Corp., 341 NLRB 1288 (2004).
The GC evidently believes the time is ripe to persuade a sympathetic Board to change the law to make it less favorable to employers. Once the right cases are identified from those submitted, an agency “complaint” can be issued and the cases brought to hearing, ultimately reaching the NLRB for decision. The GC’s memorandum is a way of finding the right cases to accomplish this.
Register Guard and Weingarten cases may not be the General Counsel’s only targets. The Operations Management Memorandum lists a total of 27 categories of cases that must be submitted to the Division of Advice. The GC has mandated that cases involving “at-will” provisions in employer handbooks and mandatory arbitration agreements with a class action prohibition be submitted also.
In light of the Board’s proposed rulemaking in representation cases, the Northwestern University football players’ attempt to be considered employees covered by the NLRA, and the GC’s memorandum, 2014 should prove to be a very interesting year in labor law.