The National Labor Relations Board Releases Four Advice Memos

The National Labor Relations Board (NLRB or Board) recently released four Advice Memos. Briefly, the holdings are as follows:

Kroger Mid-Atlantic Case 05-CA-155160 The NLRB considered whether an employer had a property interest in the parking lot outside its grocery store, entitling it to evict a non-employee union official collecting petition signatures from customers in connection with a labor dispute. While the lease and local trespass law entitled the employer to eject the union official, the employer enforced the non-solicitation policy in a discriminatory manner, leading the Board to conclude that a complaint should issue alleging that the employer violated Section 8(a)(1) of the National Labor Relations Act (Act).

Primestar Construction Corporation Case 28-CA-211009 The NLRB concluded that the employer violated Sections 8(a)(5) and 8(a)(1) of the Act by failing to meet and confer with respect to six union grievances—a mandatory subject of bargaining. Specifically here, the employer initially responded to some of the grievances, but then failed to follow through and actively participate in the resolution of the six grievances, which rose to the level of a pattern of conduct.

Metro Staff, Inc. and Bimbo Bakeries USA, Inc. Case 13-CA-225710 In this Advice Memo, the NLRB considered whether the two charged employers were joint employers. The NLRB concluded it did not need to reach a decision, because the employers were each separately liable for the alleged unfair labor practices, and the NLRB was able to craft a remedy without litigating the issue of joint-employer status. Here, the employers were separately liable for engaging in two acts of unlawful discrimination in retaliation for the Charging Party’s protected concerted activity, which involved engaging in various activities on behalf of an organization that protested alleged racial discrimination, including appearing at press conferences, circulating petitions, and distributing and posting leaflets in employee areas.

Gallup, Inc. Case 14-CA-234530 This case was submitted for advice as to whether the Charging Party was discharged for protected concerted activity when the employer terminated them for “talking about pay to others,” even though the Charging Party had been unsuccessful in enlisting any other employees in pay complaints. The Board concluded that the Charging Party’s ongoing complaints constituted protected concerted activity and thus discharge for that conduct violated Section 8(a)(1) of the Act.

Based on the NLRB’s recent holdings, employers need to be aware of conduct and employees’ rights, outlined in the Act, in order to avoid potentially expensive legal liability and obligations.