Tag Archive for: General Counsel

NLRB General Counsel issues Memo attempting to clarify Board decision regarding confidentiality clauses in severance agreements

The NLRB General Counsel issued Memorandum GC 23-05 attempting to clarify the Board’s recent decision in McLaren Macomb regarding confidentiality clauses in severance agreements.

The NLRB General Counsel’s Memo can be summarized as making the following broad points:

  • Severance agreements are not prohibited in general.
  • Severance agreements with confidentiality clauses that are narrowly tailored to protect “proprietary or trade secrets information” are enforceable.
  • The NLRB General Counsel’s office will pursue charges against employers who merely offer a severance agreement with confidentiality language that her office believes violates section 7 of the NLRA, whether or not the individual signed it.
  • The NLRB General Counsel’s office will pursue charges against employers involving severance agreements predating McLaren Macomb, in other words, her office will view the Board’s decision as retroactive.
    • Although the Memo did not address the statute of limitations, it is noted that NLRA violations generally carry a 6-month statute of limitations.
  • Because Section 7 of the NLRA protects both unionized and non-unionized employees, the NLRB General Counsel’s office will pursue charges against employers it believes have violated McLaren Macomb even where no union or actual union-organizing activity is involved.
  • When the NLRB General Counsel’s office chooses to prosecute an employer for what it believes is a McLaren Macomb violation, the Memo states her office will seek only to strike the violative language, not the release itself or other portions of the severance agreement.

Unfortunately the NLRB General Counsel’s Memo raises additional questions and fails to answer many questions raised by the Board’s ruling in McLaren Macomb, including at least and without limitation the following:

  • The NLRB General Counsel’s Memo suggests her office may take a dim view of severance agreements that attempt to waive employment claims, not just claims under the NLRA. Likewise, it suggests that her office may look restrictively at releases as to claims arising after the date of the severance agreement.
  • The NLRB General Counsel’s Memo failed to provide any kind of sample language for what her office will accept as permissible confidentiality language in a severance agreement.
  • The NLRB General Counsel’s Memo states that a savings clause “may be helpful” but failed to explain further what kind of savings/disclaimer language would be helpful or to what extent it might help. For example, since the Memo states her office will seek only to strike language to the extent violative of section 7 of the NLRA, it seems unlikely that any enforcement action would be appropriate for her office if an employer, confronted by an individual asserting a section 7 issue or even filing an NLRB charge, were to review its severance agreement (or even proffered but unsigned severance agreement) then note the presence of savings language and agree that nothing in the draft would be used in violation of section 7, especially where the employer then agrees to amend or even revise language.
  • The NLRB General Counsel’s Memo said that it would review but failed to explain when or even if other clauses besides confidentiality provisions can be violative of McLaren Macomb. Such other clauses might include non-disparagement provisions, non-compete clauses, non-solicit clauses, no-poaching clauses, even broad general release clauses and covenants not to sue. For example the NLRB General Counsel’s Memo suggested, without explaining, that her office might view at least some cooperation clauses as running afoul of section 7.
    • It appears that even under this new restrictive approach confidentiality provisions that provide that the terms of the severance agreement, including the amount of severance, are permissible. It so appears because in her Memo, the NLRB General Counsel stated that NLRB OM Memo OC 07-27 remains in effect (“Yes. OM 07-27 is consistent with the McLaren Macomb decision.”), which in turn so provided (see its section 3).
  • The NLRB General Counsel’s Memo failed to explain how it will view confidentiality and related clauses when requested by the individual, especially in states with so-called Me-Too laws that provide for the enforceability of such provisions when requested by the individual.
  • The NLRB General Counsel’s Memo notes that supervisors are generally not protected by the NLRA but hypothesized that a supervisor might somehow become protected if they refused to extend a draft severance agreement that the supervisor believed was violative of McLaren Macomb.

The Board’s decision in McLaren Macomb is likely to be appealed and subjected to further litigaiton, as is the NLRB General Counsel’s Memo.

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NLRB permits employers to eject non-employee union agents from their property

Reversing a 1999 decision, Sandusky Mall Co., the Board upheld an employer’s right to eject non-employee union agents from its premises, even though it had routinely granted other non-employees’ permission to solicit on the same premises for “civic, charitable and promotional activities.” In doing so the Board held that a union’s presence to solicit customers to join a boycott is entirely dissimilar from Girl Scout cookie sales, firefighter boot drives, Salvation Army drives, Lion’s Club activities, Red Cross blood drives and church activities. Employers may now comfortably permit such other activities without worry that they could be used by union activists to justify the union’s presence.

The Board’s ruling not only reinstated the exception permitting employers to treat civic, charitable and promotional activities” differently from unions but suggests the Board will now require an even higher showing for unions. The Board held that the new burden of proof will require the union (and NLRB General Counsel) to prove that the employer allowed “comparable organizational activities.” The Board did not give examples of what might be considered “comparable organizational activities.”

Source: Kroger Limited Partnership I Mid-Atlantic, 368 NLRB No. 64 (2019).

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NLRB General Counsel eases rules for deferral to arbitration

What if a union files a grievance under the collective bargaining agreement alleging a violation of the CBA, and then also files a charge at the NLRB alleging a violation (unfair labor practice) of the NLRA premised on the same facts? What if the timeline is reversed: The union files its ULP charge at the NLRB first then its CBA grievance? What if the union files only a ULP and for whatever reason declines to file a CBA grievance, maybe because it knows it’s case lacks merit and fears losing an arbitration of the grievance?

Can a company in any of those scenarios ask the Board to defer to the arbitration process in the CBA? The answer had historically been, yes, to all three situations, though with some caveats. This is generally called Spielberg deferral (though technically it is called Collyer deferral or Dubo deferral depending on the timing of the various kinds of scenarios).

In its 2014 Babcock & Wilcox decision, the Board carved out one scenario for special consideration: Where the union/employee has filed a ULP charge alleging a violation of sections 8(a)(3) or 8(a)(1) but have not yet filed a grievance under the CBA. The Board added special requirements for deferral in such cases.

The NLRB General Counsel has, now, opined that he believes Babcock & Wilcox was wrongly decided. He has asked the Board to reconsider when the issue next arises in a case.

In the meantime the NLRB General Counsel has instructed Board personnel to stop applying the Babcock & Wilcox additional requirements at least in cases where a grievance has been filed but the arbitrator has yet to rule (i.e., Dubo cases). Instead of the Babcock & Wilcox factors, the NLRB General Counsel has instructed Board personnel to look at whether the union can pursue its grievance to arbitration not whether it has agreed or even wishes to do so.

Source: NLRB General Counsel memorandum no. 19-03 (12/28/18).

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Rat balloon soon to be deflated by NLRB?

Bloomberg BNA reports that the NLRB General Counsel is looking to litigate one of organized labors’ favorite forms of protest: A giant inflatable rat. The effectiveness of the baloon is certainly questionnable, but it is equally undeniable that the presence of one draws attention. Often inflated in the back of a pickup truck, parked lawfully at a meter, or simply on the side of a street where a vehicle might otherwise park, these rats typically stand about twice as tall as a human: Usually under any local ordinance’s height limits.

The rats often draw much more attention than protesters might simply standing and handing out information to passersby, and that’s the point: Labor law generally distinguishes between handbilling and picketing. Handbilling is typically seen as pure speech, and as such, protected by the First Amendment, and subject to limited governmental constraints. Picketing is more easily constrained; picketing is subject to strict rules under the National Labor Relations Act for example.

In the NLRB’s 2011 Sheet Metal Workers Local 15, the Board held these rats were more like handbilling than picketing, and as such constitute symbolic speech within the First Amendment. Now, according to Bloomberg BNA, the NLRB General Counsel is looking to re-litigate that holding, contending that they should, instead, be subject to the picketing rules, and/or are at most a form of commercial speech. Commercial speech is generally afforded less protection under the First Amendment, though, in a perhaps curious twist, recent rulings by the Supreme Court seem to be suggesting the Court will afford put it on a higher constitutional footing.

 

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NLRB GC sets goal for 5% reduction in across-the-board casehandling time

NLRB General Counsel Robb announced a goal of reducing Board processing times by 5%. This goal applies to all aspects of the Board’s activities.

I am pleased to announce that the Agency has adopted a Strategic Plan calling for a 5% reduction per year in case processing time. This reduction includes not only case handling in the field, but also applies to the time between issuance of an Administrative Law Judge’s decision and Board Order, and to issuance of a Board Order and closure of the case.

All General Counsel side divisions are subject to this 5% reduction goal, including the Divisions of Advice, Legal Counsel, Enforcement Litigation,1 and Operations-Management in connection with case processing in Regional offices, where a significant number of cases will be affected.

The NLRB GC left it to the Divisions and Regions to determine for themselves how best to reach the 5% goal.

In that regard, I am vesting the Divisions and the Regions with wide discretion to develop systems and processes they believe will enable them to meet the Agency’s strategic goal.

Source: NLRB General Counsel memo no. GC 19-02 (12/7/18).

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Unions face increased exposure for DFR charges

The NLRB General Counsel issued a memorandum directing the Board’s enforcement personnel to be more aggressive in prosecuting charges against unions under the National Labor Relations Act sec. 8(b)(1)(A), which imposes a Duty of Fair Representation (“DFR”) on unions. Under Sec. 8(b)(1)(A), workers who are represented by a union may file a DFR charge alleging that the union failed to represent them adequately. To prove a DFR violation, the worker must show the failure to represent was arbitrary, discriminatory or in bad faith. Historically, union have been able to assert, as a defense, that their failure was “mere negligence.”

The NLRB General Counsel’s memo keeps in place the “mere negligence” defense but offers a tighter definition for what does and does not constitute “mere negligence.” The memo orders NLRB staff to now follow this tighter definition.

Under the tighter definition, unions face increased exposure for DFR charges. What was once “mere negligence” will no longer be tolerated by the Board.

The memo provides two specific examples:

  1. “(H)aving lost track, misplaced or otherwise forgotten about
    a grievance, whether or not (the union) had committed to pursue it,” will no longer be considered “mere negligence,” unless the union proves it did so in spite of its previously established and routinely used should be required procedural systems to process such concerns (i.e., despite proof of the prior “existence of established, reasonable procedures or systems in place to track grievances”).
  2. “(A) union’s failure to communicate decisions related to a grievance or to
    respond to inquiries for information or documents by the charging party” will generally not be considered “mere negligence.” “Regions issuing a complaint in these cases should argue that a union’s failure to return phone calls or emails or other efforts by the charging party to inquire about a grievance or attempt to file one, constitutes” a DFR violation.

The General Counsel is aware that the above-described approaches may be
inconsistent with the way the Board and Regional Directors have historically interpreted duty of fair representation law. Going forward, Regions are directed to apply the above principles to Section 8(b)(1)(A) duty affair representation cases, issue a complaint where appropriate, and make arguments consistent with those set out above.

Source: NLRB General Counsel Memorandum ICG 18-09 (9/14/18).

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Will the Supreme Court’s recent blockbuster in Janus apply to private employers?

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Employers have begun arguing that the Supreme Court’s recent blockbuster decision in Janus should be extended to private employers. In Janus, the Supreme Court ruled government workers cannot be required to pay “fair share” fees, much less union dues. The decision will have a huge impact on labor in America. Effectively, Janus converted government workforces into right-to-work workplaces. The decision is anticipated to strip organized labor of billions of dollars in revenues, much that had previously, in no small part, been used towards political contributions. The Supreme Court reasoned that requiring workers to pay even “fair share” fees, much less dues, was ultimately requiring them to support the unions’ political activities; workers should be free, as part of the constitution speech rights, to decide whether or not to support the unions’ political activities.

Janus was decided under the First Amendment, which only applies to government action. Private workers do not have First Amendment rights in their workplaces, at least as against their employers.

However, one employer is arguing that Janus should be extended to cover private workers nonetheless because, the employer argues, when the NLRB and courts attempt to enforce union requirements for dues and service fee collection, then the NLRB and courts are themselves the government actors. In other words, while the First Amendment does not limit a private employer’s ability to curtail worker speech, it limits the NLRB and courts’ ability to curtail worker speech. The employer already has a pending appeal before the Ninth Circuit, where it has just asked the Ninth Circuit to consider this new argument based on the Supreme Court’s Janus ruling (Communication Workers of America, AFL-CIO v. NLRB v. Purple Communications, Inc., Case Nos. 17-70948, 17-71062, and 17-71276).

The issue is no doubt going to be heavily litigated, but it appears the employer has the better side of this particular argument. If — as we now know from Janus — the Constitution’s speech rights in the First Amendment protect workers against compelled union contributions, they arguably constrain not only governmental employers, but all other governmental actors, including the NLRB and courts, from stripping employees, even private employees, of those same rights.

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Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

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NLRB General Counsel issues memo outlining likely reversals to Obama-era precedents

As previously reported here in this blog, the Trump Board (NLRB Boards are often colloquially but not pejoratively referred to by the President during their term) has begun overruling Obama-era precedents. Further reversals are anticipated. Curious which Obama-era NLRB precedents are likely to be reversed?

NLRB General Counsel Robb issued a controversial memo, shortlisting the cases he thinks most warrant attention. Indeed to call it a shortlist is a stretch. The General Counsel lists 26 categories, that range from employee access to email, to protections for section 7 rights, obscene and harassing behavior, off-duty access to property, the Weingarten right to have a representative present, rights of employees during contract negotiations, successorship and of course the joint employer doctrine, unilateral changes consistent with past practice, information requests during the processing of a grievance, dues check-offs, remedies, deferral, and, well, the list goes on, as will employers’ need to stay tuned to forthcoming developments at the Board.

Source: NLRB General Counsel Memorandum GC 18-02.

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Republican-majority NLRB begins overruling Obama-era precedents

As reported here, the Trump administration, earlier this year, completed nominations to the NLRB sufficient to constitute a Republican majority of the Board. As predicted, the new Republican-led Board has begun overruling Obama-era precedents.

The first case, UPMC, involves the Board’s procedural requirements for accepting settlement agreements. Historically an administrative law judge (ALJ) at the Board was authorized to accept settlement agreements if “reasonable” under a set of factors articulated in Independent Stave, 287 NLRB 740 (1987).

In 2016, the Obama Board (NLRB Boards are often colloquially and non-pejoratively referred to by the last name of the President at their time) rejected the Reasonableness standard, saying instead an ALJ was authorized to accept settlement agreements only if they provided a “full remedy” for all violations alleged in the complaint. United States Postal Service, 364 NLRB No. 116 (2016).

What’s the difference between the Reasonableness standard and the Full Remedy standard? The facts of this case, UPMC, illustrate. Here, a complaint was filed against UPMC and its affiliate, Presbyterian Shadyside, alleging violations committed by Presbyterian Shadyside. The allegations alleged that UPMC was liable as a joint employer for Presbyterian Shadyside’s violations. Presbyterian Shadyside negotiated a settlement in which it promised to fully remedy any violations; however, the settlement required the Board to dismiss the joint employer allegations against UPMC. Instead of agreeing to be held a joint employer, UPMC promised to guaranty Shadyside’s performance of the settlement.

The ALJ accepted the settlement, but the Board’s General Counsel and the Charging Party objected to how he did so, arguing that UPMC should have been required to admit to being a joint employer, instead of a mere guarantor, in order to provide a “full remedy.” The ALJ held, and in this case, the Board agreed that the settlement with UPMC being a guarantor provided the same effective relief and that it did so more quickly than continuing to litigate the joint employer issue.

UPMC’s remedial guarantee is as effective as a finding of single-employer status.  As noted above, when a parent company is found to be a single employer with its subsidiary, the parent company is liable for the subsidiary’s unfair labor practices to the same extent as the subsidiary. The practical aim of the General Counsel’s single-employer allegation in this matter, then, is to hold UPMC responsible for Presbyterian Shadyside’s unfair labor practices along with Presbyterian Shadyside.

In overruling the Obama Board’s “full remedy” standard, the Board gave a preview of how it will overrule other decisions in the coming months and years, saying the Obama-era case had “imposed an unacceptable constraint” and “was an ill-advised and counterproductive departure from longstanding precedent.”

Furthermore, we overrule Postal Service, and we agree with the dissenting views of Chairman (then-Member) Miscimarra in that case, who pointed out that Postal Service imposed an unacceptable constraint on the Board itself, which retained the right under prior law to review the reasonableness of any respondent’s offered settlement terms that were accepted by the judge. We believe the “full remedy” standard adopted by the Board in Postal Service was an ill-advised and counterproductive departure from longstanding precedent. As illustrated by the instant case, adhering to the Postal Service standard would predictably cause incalculable delay in resolving the alleged violations, while potentially jeopardizing the prospect of obtaining any remedy against UPMC. Today, we return to the Board’s prior practice of analyzing all settlement agreements, including consent settlement agreements, under the “reasonableness” standard set forth in Independent Stave, 287 NLRB 740 (1987)

While UPMC involves a relatively dry procedural issue, it foreshadows a wave of decisions by which the Trump Board will overrule a number Obama Board decisions.

Source: UPMC, 365 NLRB No. 153 (12/11/17).

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NLRB General Counsel appointment held invalid

The Supreme Court held that former NLRB General Counsel Lafe Solomon served in violation of the Federal Vacancies reform Act after his appointment by President Obama without Senate confirmation, from 1/5/11 until 10/29/13.

The decision puts at risk all bargaining units certified by the NLRB and all rulings on ULP charges, during that time.

The case was NLRB v. SW General, Inc., — U.S. — (3/21/17).

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