The National Labor Relations Board’s General Counsel has assembled his latest wish-list of “hot-button” issues he hopes to present to the Board for decision when the right cases are presented to his office.

Because certain NLRB unfair labor practice cases “are of particular interest and would benefit from centralized consideration,” the General Counsel has determined that they “should be submitted to the Division of Advice” rather than decided by the Regional Office where the charge is filed. Memorandum GC 16-01, “Mandatory Submissions to the Division of Advice,” dated March 22, 2016, from General Counsel Richard F. Griffin, Jr., is addressed to all NLRB Regional Directors, Officers-in-Charge and Resident Officers. This will allow the General Counsel’s Office in Washington to make the decision whether to prosecute cutting-edge issues in certain cases.

The types of cases recommended for submission to the General Counsel’s Office Division of Advice are divided into three groups in the Memorandum. The first and second are most important because they offer insight into areas of particular interest to the General Counsel where he may urge the Board to change its interpretations of the NLRA in a suitable case.

The first group includes those matters that involve General Counsel initiatives or priority areas of the law and labor policy. Included in this group, among others, are cases involving: (1) the application of Purple Communications, 361 NLRB No. 126 (2014) to electronic systems other than email, (2) the applicability of Weingarten principles in non-unionized settings, (3) allegations that “English-only” policies violate the National Labor Relations Act, and (4) whether the misclassification of employees as independent contractors violates the NLRA.

Purple Communications held that employers generally could not bar employees from using company email systems for personal reasons, including union organizing, during non-work time.

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 over 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 second group consists of matters that involve “difficult legal issues or the absence of clear precedent.” The General Counsel wants to review cases involving: (1) the rights of contractor employees to have access to the property where they are working to communicate with coworkers or the public, (2) whether novel forms of disruptive conduct, such as coordinated “shopping,” excessive use of loudspeakers, or corporate campaigns, constitute violations of the NLRA, and (3) the need to harmonize the NLRA with local, state or federal statutes or where potential or actual overlapping jurisdiction with other federal agencies exists, among others.

The Memorandum lists a total of 24 types of cases in the two groups that must be submitted to the Division of Advice, although it also recognizes that “the vast majority of cases may be processed without guidance from Headquarters.” In light of the Memorandum, 2016 and beyond should prove to be “interesting times” in labor law.

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Photo of Howard M. Bloom Howard M. Bloom

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Mr. Bloom speaks frequently to employer groups on a wide range of labor and employment law topics. He also has written extensively on labor and employment law for a variety of publications, including New England Business magazine, The Boston Globe and the Boston Business Journal. He also is editor of and a frequent contributor to the Jackson Lewis Labor & Collective Bargaining Blog.

While attending law school, he was the Executive Editor of The Advocate: the Suffolk University Law School Journal and President of the Student Bar Association.

Mr. Bloom is a diehard baseball fan. His first book, The Baseball Uncyclopedia: A Highly Opinionated Myth-Busting Guide to the Great American Game, was published in February 2006.

Photo of Philip B. Rosen Philip B. Rosen

Philip B. Rosen is a Principal in the New York City office of Jackson Lewis P.C. and a member of the Firm’s Management Committee. Mr. Rosen also leads the firm’s Labor Practice Group. He joined the Firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.