Labor Relations Today

Labor Relations Today

NLRB’s General Counsel Issues Guidance Following Board’s PCC Structurals, Inc. Decision

Posted in Micro Units, NLRB, NLRB Decisions, Representation Elections, Uncategorized

In December 2017, the Office of the General Counsel issued Memorandum OM 18-05. This memorandum followed the Board’s decision in PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), which overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011) and reinstated the traditional community-of-interest standard for determining the appropriateness of a proposed bargaining unit.  The memorandum directs Regions to apply the Board’s new analysis outlined in PCC “at all stages of case processing in currently active cases” and provides the following procedural guidance to ensure that the traditional community-of-interest standard is applied consistently moving forward.

The memorandum first directs Regions to “routinely afford the parties to an R case an opportunity to argue that the PCC decision has now rendered a recently consented, stipulated or directed bargaining unit inappropriate in a currently active case.”  This is true regardless of whether the case is in a pre-election or post-election posture.  If the opportunity to revisit a unit determination is not requested by a party, the memorandum instructs Regions to issue a Notice to Show Cause directing the parties to show, with specificity, why the stipulated or direct bargaining unit is inappropriate under PCC.  The memorandum attaches model notices to show cause both for cases where the unit was determined by stipulated or consent agreement and by decision and direction of election.

Next, the memorandum emphasizes the wide range of discretion afforded to Regional Directors in handling representation cases and encourages the use of that discretion to delay hearings where necessary to fully engage in the fact intensive community-of-interest analysis. Regional Directors have the discretion to set the hearing beyond the eighth day after service of the notice of hearing in cases involving unusually complex issues.  The memorandum recognizes that a case involving the PCC community-of-interest analysis would qualify as an unusually complex issue and might require additional time to ascertain the appropriate unit and prepare evidence for hearing.  The memorandum also acknowledged the Regional Director’s discretion in setting an election date for the “earliest date practicable” and described the PCC decision as a “substantial change in law” which might require additional time to set an election date.

Finally, the memorandum provides guidance on how to streamline hearings in light of the PCC decision.  It directs Hearing Officers to explore detailed stipulations of fact in an effort to avoid lengthy testimony.  It further provides the following guidance on the level of detail that must be included in Statements of Position (“SOP”) if a proposed unit is challenged:

[I]f a party contends as part of its SOP that the proposed unit is not appropriate, the party will be required to state the basis for its contention that the proposed unit is inappropriate, and state the classifications, locations, or employee groupings that must be added to or excluded from the proposed unit to make it an appropriate unit. Mere claims or rote citations to PCC will not be sufficient.  Rather, parties should be strongly encouraged to provide in the SOP specific details in order to warrant consideration for hearing.  For example, where community-of-interest factors are at issue, such as in a PCC scenario, the Regional Director should advise the parties to include in their SOP a specific description of those factors, along with the evidence which will be provided in support.  As part of their SOP, the parties must also identify any other individuals whose eligibility they intend to challenge at the pre-election hearing and the basis for such contention.  It is equally imperative that the petitioner be prepared to respond at hearing with specificity to each issue that is raised in the SOP.

Labor Relations Today Issues ‘Labor Law 2017: Year in Review’

Posted in Department of Labor, Executive Orders, Expedited Elections, Federal Court Litigation, Government Contracts, House of Representatives, Joint Employer, Legislative Strategy, Micro Units, MLA Media, Negotiations, NLRB Administration, NLRB Decisions, NLRB Rule-Making, Obama Board Reversal, Persuader Rules, Presidential Appointments, Representation Elections, Right to Work, SCOTUS, Senate, Social Media, Unfair Labor Practices, Unions, White House, Workplace Rules

McGuireWoods labor attorneys and the editors of Labor Relations Today are pleased to announce the publication of Labor Relations 2017: Year in Review.

As a new administration took the reins for the first time in eight years, employers, employees, unions, labor lawyers and observers alike all wondered what to expect from President Donald J. Trump.  Would he govern much like the traditional Republican politicians he so soundly dispatched during his unconventional run through the primaries?  Or would his labor agenda be less doctrinaire and more pragmatic – as his relationships with organized labor often seemed throughout his career as a real estate developer, builder and business operator? In some ways, 2017 brought more questions than answers. In the intense last few weeks of the year, the Board’s new General Counsel and outgoing Chairman helped tee up the answers to some of those questions.

We submit this Year in Review to summarize the most noteworthy developments in 2017 – a year in which disruption, intense partisan struggle and political intrigue was woven through nearly every legal change.  Additional information on these topics and more is available at our Labor Relations Today blog (laborrelationstoday.com), where we will continue to chronicle and alert readers to significant changes in the law as they unfold in 2018 and beyond.

We hope you find it a helpful resource as we head into what will undoubtedly be another interesting year in labor-management relations.

Click here to download Labor Law 2017: A Year in Review.

To order hard copies of Labor Law 2016: A Year in Review, e-mail John Williams here.

Busy Board Overrules Specialty Healthcare; Restores Traditional Community of Interest Standards Disfavoring Micro-Units

Posted in Expedited Elections, Micro Units, NLRB Decisions, Obama Board Reversal, Representation Elections

National Labor Relations Board Chairman Phil Miscimarra’s term expired today, but he did not coast into “retirement.”  In addition to the late flurry of decisions which include the Board’s overruling of the Browning-Ferris joint employer standard and the Lutheran Heritage Village-Livonia standard used recently to attack neutral workrules, the Board today issued a decision undoing the radical departure announced in the 2011 Specialty Healthcare decision. That decision announced new standards for determining whether the bargaining unit proposed by a petitioning union is appropriate. It cast aside presumptions which were the result of decades of practical experience and case law development, and opened the door to so-called “micro-unit” organizing, whereby unions can gerrymander a larger workforce and cherry-pick smaller units best suited to organizing success.

In PCC Structurals, Inc., 365 NLRB No. 160 (Dec. 15, 2017), the Board held:

Today, we clarify the correct standard for determining whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees. In so doing, and for the reasons explained below, we overrule the Board’s decision in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (Specialty Healthcare), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and we reinstate the traditional community-of interest standard as articulated in, e.g., United Operations, Inc., 338 NLRB 123 (2002).

For decades prior to 2011, the Board made these unit determinations by analyzing a number of factors to determine whether the employees in a petitioned-for unit shared a sufficient “community of interest” to make their representation in a single bargaining unit reasonable and effective. The factors that the Board generally considered in unit determinations included:

whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

Specialty Healthcare, 357 NLRB at 942, quoting United Operations, Inc., 338 NLRB 123 (2002).  Formal rulemaking in 1989 established industry-specific rules for determinations in acute care hospitals only; and, Park Manor Care Center, 305 NLRB 872 (1991) clarified and differentiated the standards for non-acute care facilities only.  In the Specialty Healthcare case, although neither party requested it, the Board discarded the Park Manor standards for non-acute healthcare facilities.

Despite the very narrow and industry-specific focus of the rule at issue, the Board subsequently expanded the holding in Specialty Healthcare and applied the micro-unit standard in a wide variety of industrial settings well beyond non-acute healthcare facilities — including private aviation services, beverage manufacturing, telecommunications, wine production, military equipment manufacturing, and retail sales.

In PCC Structurals, the Board announced a return to the traditional standards, and remanded the case to the Regional Director to apply those standards to determine whether the petitioned for unit of 102 welders — and excluding some 2,463 other production and maintenance employees — was appropriate.

As with the other significant reversal cases this week, Members Pearce and McFerran filed a vigorous dissent, concluding:

As reflected by its favorable reception in the federal courts, the Specialty Healthcare framework—itself based on an earlier decision of the U.S. Court of Appeals for the District of Columbia Circuit—represented a major improvement to the Board’s approach in this area. It brought greater clarity and predictability to unit determinations, while vindicating the goals of federal labor law. There is simply no justifiable reason—certainly not a change in the Board’s membership alone—to reverse course and abandon a doctrine that has been so widely accepted and praised.

If the spate of decisions issued in the last couple of days are to be challenged, this theme woven through all the minority’s strident dissents will likely form a significant basis for the effort.  It would seem the Board’s return to standards, which were accepted for decades before their radical overhaul just a few years ago, would survive challenge in the federal courts.  But time will tell.  Earlier this year, Rep. Tim Walberg (R-MI), introduced the Workforce Democracy and Fairness Act (H.R. 2776) which would amend the NLRA to expressly incorporate the traditional “community of interest” standards, and preclude future Boards from reversing course again on this issue.  The bill passed a committee vote in September 2017, but has not gone any further.

National Labor Relations Board Restores Longstanding Joint Employer Rules

Posted in Joint Employer, NLRB Decisions, Obama Board Reversal

In the closing days of Chairman Miscimarra’s term, the Board has restored the longstanding rules for finding joint employment that were cast aside by the Obama Board in the 2015 Browning-Ferris decision. In Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), the Board overruled Browning-Ferris Industries of California, Inc., dba BFI Newby Island Recyclery, 362 NLRB No. 186 (2015), and returned to the standard applied for decades prior to that decision:

Thus, a finding of joint-employer status shall once again require proof that putative joint employer entities have exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control), the control must be “direct and immediate” (rather than indirect), and joint-employer status will not result from control that is “limited and routine.”

As a result, companies which employ a variety of business models potentially targeted by Browning-Ferris may rely upon a clearer, more objective standard in determining whether they might have some responsibility for each other’s conduct or shared bargaining obligations.

For at least thirty years prior to 2015, the Board found a joint employer relationship if two or more separate entities “share[d] or codetermine[d] the essential terms and conditions of employment” of a group of employees. TLI, Inc., 271 NLRB 798, 798 (1984); Laerco Transportation, 269 NLRB 324, 325 (1984).  Under this standard, the Board appropriately required “a showing that [each] employer meaningfully affects matters relating to the employment relationship such as hiring, firing, discipline, supervision, and direction” and analyzed  both “form” (i.e., the contractual relationship between the putative joint employers) and “substance” (i.e., the actual practice of the putative joint employers). Id.; AM Property Holding Corp., 350 NLRB 998, 1000 (2007) (“In assessing whether a joint employer relationship exists, the Board does not rely merely on the existence of such contractual provisions, but rather looks to the actual practice of the parties.”). As provided by common law, the “essential element” of joint employer status required “a putative joint employer’s control over employment matters [to be] direct and immediate.”  Airborne Freight Co., 338 NLRB at 597 (emphasis supplied); see also AM Property Holding Corp., 350 NLRB at 1000-02.

In Browning-Ferris, the NLRB drastically expanded the standard for joint employment holding that the Board may find that two or more entities are joint employers of a single work force if they (1) are both employers within the meaning of the common law, and (2) “share or codetermine those matters governing the essential terms and conditions of employment.” The second factor tracked the language of the traditional test, but unlike the Board’s traditional joint employer test, the Board no longer required that the putative joint employer exercise control over the putative joint employees directly and immediately.  As criticized by the Board in yesterday’s Hy-Brand ruling:

In Browning-Ferris, the Board majority held that, even when two entities have never exercised joint control over essential terms and conditions of employment, and even when any joint control is not “direct and immediate,” the two entities will still be joint employers based on the mere existence of “reserved” joint control,or based on indirect control or control that is “limited and routine.”

The majority decision in Hy-Brand expands in significant length upon the Browning-Ferris dissent filed by then Member Miscimarra and Member Harry Johnson. Applying the restored standard, however, the Board still found the employers at issue in the case to be joint employers:

Applying the joint-employer standard that existed prior to Browning-Ferris, we find that the record establishes that Brandt and Hy-Brand constitute a joint employer, which means they are jointly and severally liable for remedying the unfair labor practices committed in the instant case. Substantial evidence supports a finding that the two entities exercised joint control over essential employment terms involving Brandt and Hy-Brand employees, the control was direct and immediate, and it was not limited and routine. … [T]he record establishes that the joint control described above was actually exercised, not merely re- served, and that it had a direct and immediate impact on Brandt and Hy-Brand employees.

It remains to be seen what impact this ruling will have on the pending McDonald’s litigation, which has necessitated nearly 200 days of hearing to date, and is nowhere near resolution. In 2014, the Board undertook prosecution of 13 complaints involving 78 charges filed against McDonald’s and numerous franchisees as joint employers. At the commencement of the litigation, the General Counsel urged adoption of the standards eventually announced in Browning-Ferris. Now that there is a new General Counsel and restored legal standard, we might wonder whether the case will be discontinued.

National Labor Relations Board Overrules Lutheran Heritage; Sets New Standard For Reviewing Work Rules Unrelated to Protected Activity

Posted in NLRB Decisions, Obama Board Reversal, Uncategorized, Unfair Labor Practices, Workplace Rules

As is often the case when a Board Member’s term winds down, this week has seen a flurry of activity.  Back in May, when nominations to seat a full Board were still just being rumored, we identified a handful of the more extreme and overreaching decisions of the Obama Board certain to find themselves in the cross-hairs. With decisions issued yesterday, the Board has knocked two of the bigger items off that list – one of which is the overruling of the Lutheran Heritage Village-Livonia standard by the decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board announced the standard for determining whether the mere maintenance of a facially neutral work rule might still be found to violate the National Labor Relations Act because “employees would reasonably construe the language to prohibit Section 7 activity.”  Since then, however, the Board repeatedly ignored context, and completely disregarded employer explanations unrelated to union activity, to cite this decision as support to outlaw historically common work rules such as rules:

Boeing is a prominent government contractor and manufacturer of military and commercial aircraft at numerous production facilities throughout the United States. Because it is a prime target for unfair competition, industrial and national security espionage, and other security and safety risks, the company has maintained a blanket ban on use of camera-enabled devices such as smart-phones on its premises.  That rule [PRO 2783] read, in part:

Possession of the following camera-enabled devices is permitted on all company property and locations except as restricted by government regulation, contract requirements or by increased local security requirements.However, use of these devices to capture images or video is prohibited without a valid business need and an approved Camera Permit that has been reviewed and approved by Security: [list of devices omitted]. Id. [Emphasis in original.]

The Administrative Law Judge, relying primarily on Lutheran Heritage, placed the burden entirely on the employer and discounted the context, declaring the rule unlawful:

I find that Respondent’s facially overly broad and ambiguous rule PRO 2783 would reasonably tend to chill employees in the exercise of their Section 7 rights and that an employee would reasonably construe the language to prohibit Section 7 activity.

The Board majority, however, has set forth a detailed critique of the historical application of Lutheran Heritage, asserting that it has disregarded legitimate employer interests, elevated the need for impossible linguistic precision, ignored varying industrial realities, and ultimately failed to provide predictable results. In explaining these findings, the decision highlights one of the most serious traps the expanding standard had set for employers:

The Lutheran Heritage standard, especially as applied in recent years, reflects several false premises that are contrary to our statute, the most important of which is a misguided belief that unless employers correctly anticipate and carve out every possible overlap with NLRA coverage, employees are best served by not having employment policies, rules and handbooks.

Accordingly, the Board announced a new standard thus:

In cases in which one or more facially neutral policies, rules, or handbook provisions are at issue that, when reasonably interpreted, would potentially interfere with Section 7 rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s). Again, we emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between…asserted business justifications and the invasion of employee rights in light of the Act and its policy.”

In this case, the Board considered the employer’s justifications – the rule’s role in maintaining federal contractor accreditation and compliance with federal “export control” information disclosure regulations; protection of proprietary information; and other security and privacy concerns – and weighed them against the lack of evidence that the rule had actually interfered with any Section 7 activity.  On balance, the Board held the “no-camera” rule is lawful.

Members Pearce and McFerran – Democrat appointees – each filed a dissent, criticizing the majority for overturning precedent without seeking input from a broader universe of “stakeholders in industry and labor”; asserting that the newly announced standard is actually more complex than Lutheran Heritage; and, expressly defending the old standard’s protection of vulgar and disrespectful conduct by employees.

Going forward, employers should ensure that policy statements and work rules remain facially neutral and that they may assure employees that they do not interfere with their Section 7 rights.  Moreover, in drafting policy language, employers should still attempt to narrowly tailor prohibitions to well-defined legitimate employer interests.  Finally, they should follow the Board’s application of this new standard to varying facts and circumstances, to try to discern the emerging patterns, as the Board itself indicates in the Boeing decision that it will categorize its future decisions into three categories: (1) rules which are lawful to maintain because they are not reasonably read to interfere with Section 7 rights, or potential impact is so slight as to be outweighed; (2) rules which require individualized scrutiny to determine if they would interfere, or whether such interference might be outweighed by the justification; and (3) rules which are unlawful because interference is not outweighed by justifications.

Peter Robb Confirmed as National Labor Relations Board General Counsel

Posted in NLRB Administration, Obama Board Reversal, Senate, White House

By a party-line 49-46 vote, the Senate voted yesterday to confirm the nomination of Vermont labor lawyer Peter Robb to serve as the next General Counsel of the National Labor Relations Board.  Robb replaces former union lawyer Richard Griffin whose term ran from November 2013 until last month. (Longtime Board official Jennifer Abruzzo has been serving as Acting General Counsel thusfar during November.)

The hyper-partisan tally is consistent with the 2013 confirmation of Mr. Griffin by a 55-44 party-line vote, following a negotiated compromise in the Senate to preserve the filibuster.  Mr. Griffin served following a prolonged period during which there was no properly authorized General Counsel, as the U.S. Supreme Court invalidated the tenure of Lafe Solomon, who for years performed the General Counsel role without Senate confirmation.  Prior to Mr. Solomon, General Counsel appointments — like many presidential appointments — were generally less controversial.  Ron Meisburg, for example, who served 2006-2010, was confirmed by a voice vote.

Senate Democrats, however, are concerned that a confirmed Republican General Counsel setting the agenda for a Republican majority Board will pursue a roll back of the more extreme and overreaching policy directions of the Obama Board.  The likely targets of such an agenda include:

As we have noted previously, however, there will not be much time during the five weeks (including Thanksgiving) before Chairman Miscimarra’s term expires on December 16, 2017, for the Board to effectuate much — if any — of this.  Accordingly, one may expect even more aggressive Democratic opposition to whomever is nominated to that upcoming vacancy.

Vote Expected Next Week on Peter Robb’s Nomination as Board General Counsel

Posted in NLRB Administration, Obama Board Reversal, Presidential Appointments, Senate

Senate Majority Leader Mitch McConnell filed a motion for cloture today on the nomination of Peter Robb to serve as the next General Counsel of the National Labor Relations Board.  A vote is expected on his nomination — which will likely be approved with a largely partisan margin — on Monday, November 6, 2017.  Former General Counsel Richard Griffin’s term ended on October 31, 2017.  As Mr. Robb’s nomination has been sitting in the Senate since its approval by the Senate Health, Education, Labor & Pensions Committee on October 18, 2017, the Board announced this week that Deputy General Counsel Jennifer A. Abruzzo is serving as Acting General Counsel in the interim.  Ms. Abruzzo has served previously in numerous significant positions during a twenty-three year career at the Board — Executive Assistant to General Counsels, Deputy Assistant General Counsel in the Division of Operations, Deputy Regional Attorney, and Supervisory Field Attorney to name a few.

The Board General Counsel is essentially the chief prosecutor at the Board, and sets the general philosophical and strategic priorities for the Board.  Acting General Counsel Abruzzo may be expected to serve as a temporary caretaker in the position, simply ensuring that the Board is able to function, and to process cases, during this gap leading up to Mr. Robb’s anticipated swearing in.

Per the White House nomination sent to the Senate:

Mr. Robb currently works as the director of labor and employment at the law firm Downs Rachlin and Marin.  Prior to that, Mr. Robb served as special labor counsel to Proskauer Rose from 1985 – 1995.  He also served as chief counsel to Member Robert Hunter on the National Labor Relations Board.  Mr. Robb earned his B.A. in economics from Georgetown University and his J.D. from the University of Maryland School of Law.  Mr. Robb currently resides in Vermont with his family.

As General Counsel, Mr. Robb is expected to revisit many of the prior administration’s more extreme and abrupt departures from long-standing precedent and well-settled Board law.  During the Senate HELP Committee hearing on a crowded slate of administration nominees, Committee Chairman Sen. Lamar Alexander (R-TN) stated:

Mr. Robb should help restore the board to the role of neutral umpire. While board partisanship did not start under the previous administration, it became far worse. When the board is too partisan, it creates instability in our nation’s workplaces and creates confusion for employers, employees and unions.

While employers are looking to the new Board majority and a sympathetic General Counsel to begin this process of restoration, under the best of circumstances, if Mr. Robb is approved and sworn in quickly next week, there will not be much time in a holiday-riddled calendar before Chairman Miscimarra’s term expires on December 16, 2017.  The Board’s historic practice has been to avoid overturning precedent absent a three vote majority to do so.

National Labor Relations Board Has Five Members, As Republican William Emanuel Sworn In

Posted in NLRB Administration, Obama Board Reversal, Presidential Appointments

William J. Emanuel was sworn in on September 27, 2017, to his seat on the National Labor Relations Board, days after his confirmation by the Senate.  Member Emanuel succeeds outgoing Member Kent Y. Hirozawa, who served for three years, and temporarily shifts the balance of the Board in favor of Republican appointees.

According to the Board’s press release:

Prior to his appointment to the NLRB, Mr. Emanuel served as a shareholder with the law firm Littler Mendelson, P.C.  Before joining Littler Mendelson, he practiced management labor law at several other firms, including Jones Day and Morgan, Lewis & Bockius. He has authored labor publications and several amicus curiae briefs. He served as the former Chairman of the Labor Relations Advisory Committee and as the former Chair of the Employers Group Legal Committee. Mr. Emanuel received his J.D. from Georgetown University, and his B.A. from Marquette University.

The Board now has a full complement of Members, and a 3-2 Republican tilt at least until Chairman Miscimarra’s term ends in December.

Fired Google Manifesto Author Files Unfair Labor Practice Charge: Did He Engage In Protected Activity?

Posted in NLRB, Presidential Appointments, Unfair Labor Practices

A Google engineer was fired last week after circulating a 3,000 word memorandum, among other things, criticizing the tech giant’s approach to diversity issues and questioning the root causes of the industry’s gender gaps.  He has filed an unfair labor practice charge with the National Labor Relations Board alleging that the company violated Section 8(a)(1) of the National Labor Relations Act:

…by threatening employees because of their protected concerted activities and by making threats of unspecified reprisals against employees because of their protected concerted activities.

Presumably, his termination for drafting and circulating the memo among his co-workers will be central to his proffer of evidence.

One article on the charge filed by James Damore, explained the authors’ skepticism thus:

Damore could argue to the labor board that by firing him for his memo, Google violated the federal law that protects collective action by employees, said Wilma Liebman, who chaired the National Labor Relations Board under President Barack Obama.

To prevail, he’d have to show that his letter was related to workplace conditions, that it was designed to instigate collective action among his co-workers, and that it wasn’t so defamatory or offensive as to forfeit legal protection. “I think it’s an open question,” Liebman said. “It’s not a slam dunk either way.”

Yet it is the extreme expansion of NLRA Section 7’s protections by former Chair Liebman and her philosophical disciples on President Obama’s NLRB that have paved the way for this case.  As I mentioned in a conversation with Bloomberg BNA, while much of the manifesto may well be characterized as political, philosophical and/or scientific debate, there are clearly portions where the author sought to make common cause with his co-workers regarding working conditions.  For example, in an effort to address the various pay and promotion issues identified by the memo, the “Suggestions” section recommends, among other things, that the employer:

  • “[s]top restricting programs and classes to certain genders or races”;
  • discontinue “microaggression training”;
  • make “Unconscious Bias” training mandatory for promotion committee members; and
  • implement other adjustments to surveys used in pursuit of diversity within certain “org levels.”

It is hard to argue that these specific recommendations do not pertain at all to the working conditions of the memo author and his co-workers at the company. It may be slightly more complicated to question whether his circulation of this memo to numerous co-workers, including, by some reports, via internal employee bulletin board postings, was “designed to instigate collective action.”

As for whether the memorandum’s contents were so “defamatory or offensive” so as to forfeit the protection of the NLRA, that question seems ironic the same week that the Circuit Court of Appeals for the Eighth Circuit issued its decision in Cooper Tire & Rubber Co. v. NLRB, No. 16-2721 (8th Cir., Aug. 8, 2017).  In that case, the Court upheld an earlier decision of the Board protecting the “right” of a striker to yell vile, racist epithets at African-American workers from the picket line.

It may be interesting to follow the investigation of this charge as it winds through the Regional Office and makes its way to the General Counsel’s office.  The current General Counsel, Richard Griffin, has largely been a philosophical ally of former Chair Liebman.  But his term expires in November of this year.  His replacement is yet to be nominated by President Trump, although observers expect that nomination soon after Congress returns from the Summer Recess.  Timing and personnel issues may well play into the resolution of this intriguing case.

More coverage and analysis:

National Labor Relations Board Now Has Four Of Five Seats Filled

Posted in NLRB Administration, Obama Board Reversal, Presidential Appointments

Marvin Kaplan was sworn in today to his seat on the National Labor Relations Board.  Mr. Kaplan was confirmed by the Senate on August 2, 2017, and will serve a term which lasts until August of 2020.

According to the Board’s press release:

Board Member Kaplan has selected James R. Murphy to serve as his Acting Chief Counsel.   Mr. Murphy most recently served as Chief Counsel to Member Harry I. Johnson, III, and before that to Member Brian Hayes and Member Peter Schaumber.  He began his career at the Board as a student law clerk in 1974, and has been was a staff counsel or supervisor on the staffs of dozens of Board members.  Mr. Murphy earned his B.A. degree from Princeton University in 1972 and a J.D. from the American University Washington College of Law in 1976.

Board Chairman Philip A. Miscimarra welcomed Kaplan to the Board, noting “It is my pleasure to welcome Marvin E. Kaplan to the National Labor Relations Board. He has devoted his career to public service. My colleagues and I look forward to working with Member Kaplan.

Chairman Miscimarra officially announced this week that he will not seek a second term when his current term expires in December 2017.  The continuing pendency of William Emanuel’s nomination to the Board’s final seat, and the Chair’s eventual vacancy, provide some uncertainty for the prospects of a stable Republican majority on the Board throughout the near future.