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New NLRB General Counsel Signals Enforcement Changes

The United States Senate confirmed Peter Robb as the new General Counsel to the National Labor Relations Board on November 8, 2017. On December 1, 2017, Mr. Robb issued a memorandum to the NLRB regional offices that required those contemplating enforcement actions to seek advice before proceeding. The categories for which advice must be sought are (1) cases over the last eight years that overruled precedent and involved one or more dissents on the Board, (2) cases involving issues that the Board has not decided, and (3) other cases that region officials believe will be of importance to the General Counsel. The requirement that enforcement authorities seek advice in such cases suggests that the General Counsel may be contemplating a change in enforcement policy on those issues.

The memorandum identified several examples of the kinds of issues that would require seeking advice, among them the following:

Inappropriate Social Media Postings. In Pier Sixty, LLC, 362 N.RB No. 59 (Mar. 31, 2015), the Board ruled that a catering service company unlawfully discharged an employee for posting a vulgarity-filled comment to Facebook about a member of management, knowing that his coworkers who were Facebook friends would be able to read the comment. The posting, although its language was “distasteful,” constituted concerted activity protected under section 8 of the National Labor Relations Act.

Employee Handbook Conduct Provisions. In Casino San Pablo, 361 NLRB No. 148 (Dec. 16, 2014), the Board ruled that a handbook rule barring “disrespectful conduct” was too broad, and could be interpreted by employees in a manner that would discourage them from exercising their rights under section 7 of the National Labor Relations Act to engage in collective activity.

Joint Employer Status. In Browning-Ferris Industries of California, Inc., 362 NRLB No. 186 (Aug. 27, 2015), the Board revised its standard for determining whether an employer had joint employer status. It ruled that it would find two or more entities to be joint employers if they are both employers within the meaning of the common law, and if they share or codetermine matters governing the essential terms and conditions of employment. In that case BFI relied on workers supplied by an independent company to sort streams of material into categories at BFI’s recycling plant. Because BFI had control over who the independent company could hire, barred the company from paying its workers more than BFI paid its employees for comparable work, and provided some day-to-day supervision of the independent company’s workers, it was deemed a joint employer. In a notable application of this standard, several NLRB regions have brought complaints against McDonald’s, alleging that it is a joint employer with its independent franchisees. Read the NLRB press release on the complaints against McDonald’s.

Update: On December 14, 2017, the Board overturned the Browning-Ferris standard in Hy-Brand Industrial Contractors, Ltd and Brandt Construction, Co., 365 NLRB No. 156. Two new appointees to the Board joined one of the Browning-Ferris dissenters to announce a “return” to the joint liability principles applied before Browning-Ferris, which the decision described as “requir[ing] direct control over one or more essential terms and conditions of employment to constitute an entity the joint employer of another entity’s employees.”

Other examples are provided in the full text of the memorandum, which is available here on the NLRB website.