NLRB Releases Eight Advice Memoranda

On April 15, 2019, the Office of the General Counsel for the National Labor Relations Board released eight Advice Memoranda, which are summarized below. [Note: the dates in parentheses are the dates when the Advice Memoranda were originally issued].

  1. General Motors, Case 7-CA-53570 (December 20, 2011). The issue in this case was whether General Motors’ social media policy violated section 8(a)(1) of the National Labor Relations Act. This Advice Memorandum found that eight different portions of the employer’s social media policy violated the NLRA because they “reasonably tend to chill employees in the exercise of their Section 7 rights.” Nevertheless, the NLRB’s Division of Advice determined that the employer did not violate the Act when it suspended an employee for posting vulgar language on the employer’s Facebook page it maintained for its “employees, retirees, and family to gather and share information.”
  2. Colorado Fire Sprinkler, Case 27-CA-115977 (July 10, 2014). The Division of Advice determined that the employer entered into a Section 9(a), rather than Section 8(f), relationship with the Union, which required the employer to continue to recognize and bargain with the union, even after the union’s multi-employer “master” agreement had expired, “until and unless the union is shown to have lost majority support.”
  3. Universal Security, Inc., Case 13-CA-178494 (November 4, 2016). The Division found that the employer, a provider of unarmed security guard services at Chicago O’Hare airport, violated Sections 8(a)(1) and (3) of the NLRA when it terminated two employees for engaging in protected concerted activity. The Division also found that the employer violated Sections 8(a)(1) and (3) of the Act for terminating these employees for violation of an overbroad communications policy that restricted employees from communicating with the media.
  4. International Association of Heat and Frost Insulators and Allied Workers, Local 10, Case 15-CB-202344 (June 13, 2018). The Division upheld as legal an Article of the union’s constitution and bylaws that permitted discipline for members for “making known the business of the [union] to any employer … .” The Division determined that the union’s discipline against the charging party based on this Article was unlawful, however, because it infringed upon the charging party’s Section 7 rights to criticize the union’s apprenticeship classification policy, even though the charging party communicated his criticism and information about the apprenticeship program directly to the employer.
  5. Colorado Professional Security Services, LLC (COPSS), Cases 27-CA-203915, -27-CA-206097, and 27-CA-206104 (August 7, 2018). The Division determined that the employer’s policy prohibiting employees from “publicly criticizing the Company, its management or its employees …” was unlawfully overbroad, and the chilling effect on employees’ rights under the NLRA outweighed the employer’s purported business justification. The Division also determined that the employer’s dismissal of a charging party for gross misconduct (posting a Facebook video containing “offensive and potentially threatening comments” while on duty and in uniform) was not in violation of Section 8(a)(1) of the Act. Finally, the Division determined that, although the employer’s state court lawsuit against the charging parties for “defamation, interference with contractual relations, and interference with business relations” was baseless, it was not unlawful under the NLRA because it was not retaliatory and it did not target employees’ protected concerted activity.
  6. Sheet Metal Workers International Association, Local 312 (Schoppe Co., Inc.), Case 27-CB-215546 (October 22, 2018). In this case, a union member requested that the union file a grievance against his employer, and was led to believe by union officers that the grievance had been filed; however, the union did not investigate or take any action to file the grievance. The Division determined that the union’s actions violated the NLRA, holding that ‘[w]hile unions are not obligated to pursue every grievance they are presented with … the Union’s conscious inaction was not the product of a rational weighing of the evidence that tilted towards a finding of no merit, but rather a willful failure to engage in even a superficial examination of the Charging Party’s issue.” Moreover, the Division found that the union failed to inform the member that the grievance was time-barred and “withheld the true status of the grievance in an attempt to cover up the Union’s inaction.”
  7. Domino’s Pizza, LLC, Case 29-CA-229500 (March 20, 2019). After an insufficient showing of interest for three groups of employees at a Woodhaven, New York store, the employer terminated seven employees at the store and then hired or transferred another 16 employees into the same store before the union filed a second petition for only two of the employee groups. The union argued that the employer violated the NLRA by “packing” the bargaining unit with newly hired and transferred employees to “dilute” the union’s showing of interest for a representation petition. The Division recognized that, previously, the NLRB only had applied the “unit-packing doctrine to circumstances where additions to the bargaining unit were made after a representation petition was filed and the union had already secured a sufficient showing of interest … to proceed to an election.” Here, however, the alleged unlawful unit-packing took place before the union attempted to make another showing of interest for a new petition. Rather than “litigate difficult issues … in a lengthy administrative proceeding,” the Division decided that the union should be permitted to move forward with its election based on its original showing of interest.
  8. St. Barnabas Medical Center, Cases 22-CA-224139 and 22 CA-224866 (March 22, 2019). An employer unilaterally changed its grievance communication practices with union representatives by, in part, increasing its Human Resources department’s involvement as a coordinator in the process. The Division held that the employer did not violate the NLRA, however, because the grievance management changes were not material, substantial, or significant. The Division also determined that a nurse’s suspension did not violated the NLRA because it was based on the employer’s belief that the employee had missed a shift, not because the nurse refused to provide a written statement to the employer (which previously had not been required of employees).

Full copies of these Advice Memoranda, as well as others released by the Office of General Counsel, can be found here: https://www.nlrb.gov/news-publications/nlrb-memoranda/advice-memos/recently-released-advice-memos