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Legal Updates

Key Takeaways From The NLRB's Recent Advice Memoranda

The National Labor Relations Board’s (the “NLRB” or the “Board”) Office of the General Counsel (“GC”) recently released nine advice memoranda providing guidance on a variety of labor relations issues, ranging from the status of workers in the modern gig economy to unions’ use of “Scabby the Rat” in labor dispute demonstrations. The GC issued the advice memoranda between February 2017 and April 2019, but they were not made publicly available until this past May.

Although NLRB GC advice memoranda are not binding on the Board, they provide direction for the Board’s regional offices with respect to whether to pursue or dismiss certain charges. In addition, advice memoranda provide valuable insight into the GC’s priorities and approaches to emerging issues, which helps management and unions understand what to expect from the Board in the coming months and years.

Many of the newly-released memoranda have implications for all employers, not just those with union-represented employees, so your organization should be aware of these recent developments.

Uber Drivers

In the GC’s most headline-grabbing advice memorandum, it applied the current Board’s new standard for classifying independent contractors, established in January 2019 in SuperShuttle DFW, Inc., to conclude that Uber drivers are independent contractors excluded from coverage under the National Labor Relations Act (the “Act”) and therefore not eligible to unionize. Ultimately, the GC concluded that Uber drivers’ “significant entrepreneurial opportunity” provided “strong support” for independent contractor status. Examples of Uber drivers’ “entrepreneurial opportunity” include the drivers’ control of their cars and work schedules, and their freedom to choose log-in locations and work for other drive-share companies competing with Uber.

The Fate Of Scabby The Rat

Another key advice memorandum urges the NLRB to reverse Obama-era Board precedent permitting the use of large stationary banners and “Fat Cat” and “Scabby the Rat” balloons as lawful, non-coercive union demonstration activity.

A union contesting a Chicago subcontractor’s alleged failure to pay area standard wages demonstrated at a downtown Chicago construction site on which the subcontractor worked, displaying a 10-15 foot tall “Fat Cat” balloon and a large yellow banner reading “LABOR DISPUTE: SHAME SHAME” and the name of the general contractor on the construction site. The union’s conduct misleadingly suggested that its dispute was with the general contractor, a neutral employer, rather than the subcontractor with which the union was in a labor dispute.

The new advice memorandum rejected the Obama-era Board’s narrow definition of unlawful picketing, which permitted such stationary bannering and the use of large, inflatable labor symbols such as “Fat Cat” and “Scabby the Rat” during labor demonstrations. The memorandum further instructed the NLRB regional office investigating the charge to issue a complaint and use it as a vehicle to urge the current Board to revert to a broader standard under which such conduct would be unlawful. According to the advice memorandum, under “the more reasonable definition of picketing,” the union’s large, misleading banner and “Fat Cat” symbol - in this case depicting a cat strangling a worker at the entrance to the work site - were separately and together “tantamount to picketing because each created a symbolic, confrontational barrier” to anyone trying to enter the site.

The memorandum dismissed First Amendment concerns articulated in Obama-era Board cases permitting such bannering conduct. Instead, it adopted the position that even if bannering activity did not rise to the level of unlawful “picketing,” it still should be found unlawfully coercive because it amounts to “labor speech” or “commercial speech,” which is afforded reduced protection under the Supreme Court’s interpretation of the First Amendment. Finally, the advice memorandum argued that the union’s claiming there was a labor dispute with a neutral employer constituted “false speech undeserving of First Amendment protection.”

Workplace Rules

The GC also issued a memorandum applying recent Board precedent to a set of workplace rules maintained by a financial services company.

In the Board’s 2017 decision in The Boeing, Co., the Board revised the standards by which it determines when an employer’s mere maintenance of a workplace rule violates workers’ rights to engage in protected activity under Section 7 of the Act. According to the new advice memorandum, under the Boeing standard, three of the four examined rules were unlawfully broad, specifically blanket prohibitions on (1) “[s]olicitation or distribution of literature within the department without the approval of Human Resources and the department manager”; (2) “[a]ny conduct or activity which is not in the best interest of the Company”; and (3) “us[ing] Company supplies or equipment for solicitation or distribution.”

Because it considered these blanket rules to interfere with workers’ Section 7 rights to engage in protected activity, the advice memo urged the Board region investigating the charges to allege that the rules were “unlawfully overbroad” and that the employer’s maintenance of the rules violated the Act. Under the GC’s analysis, however, the employer’s issuance of a coaching notice based on one of the unlawful rules was permissible, because the notice was issued in response to an attendance issue that was wholly unrelated to any activity that could be protected under the Act.

The fourth rule, which prohibited “insubordination, neglect of duties or other disrespectful conduct,” was considered lawful under the Boeing standard because “the vast majority” of conduct covered by the rule would not be protected under the Act, and employees would not understand the rule to be prohibiting protected concerted activity. In addition, the memo recognized that employers have a legitimate and substantial interest in preventing insubordination and non-cooperation at work, and they have “every right to expect employees to perform their work and follow directives during working time.”

Unions’ Obligations To Track Grievances

One of the memoranda released this past May further clarified the GC’s position on processing employee allegations against their unions for violating a union’s duty of fair representation. Specifically, the memorandum argued that the SEIU United Health Care Workers union violated the Act by failing to tell one of its members, an employee of Kaiser Los Angeles Medical Center, that the member’s grievance had been denied until after the contractual grievance appeal period had expired. In the GC’s view the union’s failure to implement a grievance-tracking system to keep grievants and union officials apprised of the status of grievances was a “systemic failure” amounting to “arbitrary conduct that violated the Union’s duty of fair representation.”

Other Issues

The remaining advice memoranda address various other topics, including employers’ obligations to deduct and remit union dues to successor unions and union members’ Weingarten rights to have union representation at investigatory interviews.

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If you have questions regarding any of these developments, or on what implications they might have for your organization, please contact one of our experienced labor attorneys.