Season 1, Episode 2: NLRB Update, Part 1: Latest Guidance from the General Counsel's Office

Gabe Jiran: Good morning. Welcome to today's episode of, “From Lawyer to Employer: A Shipment Podcast”. I'm your host, Gabe Jiran, and today I'm talking with my colleague and labor and employment lawyer, Jarad Lucan about the latest guidance from the NLRB General Counsel's office. So this is our second installment and this topic is one that's right in my wheelhouse and I'm happy that Jarad's here to join me. Thank you, Jarad.

Jarad Lucan: Thank you Gabe for having me.

Gabe Jiran: So, you know, the NLRB tends to be one of those… How do I say politically motivated types of tribunals? It seems like with each change in administration, their decisions seem to change as well. What are you hearing about what they're looking to do in the next few years?

Jarad Lucan: Sure. Well, that's a great point that you make. I mean, as we know, the labor board is tied really to the administration that happens to be in power at that time. So we see every four or eight years a shift in what the agenda is and what the-, how the cases are going to come down, whether they're more pro or helpful to employers or more pro or helpful to employees and unions.

And so with the Biden administration, what we're seeing, particularly from the General Counsel's office and the General Counsel is the prosecutorial arm of the board. She has issued a memorandum back in August that sort of identifies a laundry list of cases and issues that the labor board would be looking to potentially overturn from cases that were issued during the Trump administration.

So for example, one of the hot topics is always going to be protected concerted activity, right? And so what we saw during the Trump administration was a push to try to limit what is considered a protected concerted activity in the workplace and limiting how much protection under Section 7 of the NLRA that employees would have.

I think what we're going to see from this General Counsel is a real push to find cases in which that can be expanded in particular beyond just the typical wages, hours, terms, and conditions of employment- as we think of them in the traditional sense, particularly as we see these sort of social impact issues going forward, like black lives matters and things of that nature, we might see cases get pushed into that direction from this General Counsel and from this board about people having discussions in the workplace about social issues, such as those could fall in the line of protected concerted activity.

Gabe Jiran: It was viewed the NLRB as like this pendulum swinging back and forth. [I mean] This is not a political podcast in any way, and so that we're not really reflecting on the wisdom of these changes, but we had the Obama era NLRB, which seemed to be more pro-employee. And then in the Trump era, the pendulum kind of swung the other direction and started to loosen up some of those constrictions from the Obama era. So is this just the pendulum swinging back the other way?

Jarad Lucan: Yeah, I mean, it's something that gets that we-, as I said earlier, that we see every four to eight years, depending on what administration is in power at the time. We'd like to think that there's going to be some precedent that withstands, right?

So that employers and employees together can have a better understanding of what is allowed or not allowed in the workplace. But because of sort of the political nature of this and the agendas in which certain administrations either get elected on or put forth in their campaigns, we get an idea of, of this pendulum switch, which was going to happen.

And so the Trump administration was very pro-employer for lack of a better term. And so we saw a lot of cases that undid what the Obama administration did in terms of union access, in terms of, as I said, protected concerted activity in terms of organization, what types of units can be organized, whether very small to sort of wall to wall units.

And so it seems at least from the General Counsel's memo that she issued back in August, and those are the types of cases that we're going to see that are going to come before the board, that they're going to have an initiative to overturn.

Gabe Jiran: It's kind of an interesting dynamic because the NLRB is, I guess you could say like the Supreme Court of labor matters, you know, they're not the final, say it can be appeal- their decisions can be appealed, but I mean, do you have an understanding what the General Counsel's role in this is?

Jarad Lucan: Well, the General Counsel doesn't make the decisions. So the Labor Board decides on what the law will be, but the General Counsel and the individuals and the attorneys that work for the General Counsel prosecute the cases.

And so they have a lot of discretion on what cases are going to be go forward and what arguments are going to be made and can sort of push the agenda for the members of the Labor Board to be looking at. And so if a case doesn't come before the Labor Board, the Labor Board can’t overturn it. Unless they go through a different process such as rulemaking, but that doesn't work a lot for a lot of the case law.

Only the cases that become before the Labor Board can be overturned. And so there's always going to be a case out there that goes one way or the other as it relates to an issue. And so this General Counsel is more likely to push the cases that they think are better to get to the agenda that they want to, which is to increase the rights of employees, to engage in certain activities in the workplace, to allow better access to unions in order to organize more than they have now in particular whether or not certain off-duty individuals will be allowed access to an employer's premise. And so there's always that push and pull between property rights of the employer and the ability to discipline versus the employee Section 7 rights to have access to Unionization and to be able to speak their mind.

And so we'll see, I think what the right cases come before the Labor Board, it's sort of shifting more towards those Section 7 rights, right? The ability to organize and the ability for employees to speak their mind in the workplace having some strength.

Gabe Jiran: Yeah. You know the- the term protected concerted activity is one of those terms of art that applies to Section 7 of the NLRA. But what we found, I mean, it's always been this way that that's not just union employees, you know, that can be any employee really, if they band together for, for some purpose.

And so, I mean, you know, we're guessing a little bit, but based on the General Counsel memo, it seems like that's going to be a hot topic as well, right?

Jarad Lucan: Yeah, that is. And there's actually, there was a couple of cases under the Trump administration that dealt exactly with that, whether it's in the union context or not about an individual employee engaging in certain activity and whether that would be protected concerted activity, particularly whether it's in the, in the workplace or not, or on social media.

And so I think we'll see this case hasn't come before us yet, but I think we'll see this Board and this General Counsel pushing cases where they're going back to more, the sort of inherent rights, right? About whether or not certain individual conduct is really inherently group conduct. Although not obviously that way.

Even if there was no obvious evidence that the person is speaking on behalf of others, if it impacts other employees, what they're raising, it might go back to this idea of that being protected concerted activity. But again, it doesn't matter whether it's a unionized context or not. A lot of times the cases can be outside of the union context. Employees, as you indicated, have the protection of Section 7 rights, whether they're unionized or not.

Gabe Jiran: Yeah. This is the thing that was, uh, it was so hard, just going back in history and the Obama era, for example, employer handbooks and policies, and we saw all this activity that was basically overturning a lot of traditional employer policies that said, hey, this might be some sort of a limit on employees’ rights, uh, under Section 7, to- to band together and act together.

And then we saw with the Trump era, a reversal of a lot of those, but you know, the General Counsel's memo speaks about this particular topic on employer handbooks. And so we might be now turning back the clock, you know, five or six years to, to those types of cases again, don't you think?

Jarad Lucan: No, I think that's right. And it makes it difficult for employers to understand what they can and can't do in the workplace because we're looking at policy reviews and handbook reviews every four to eight years based on whether or not certain conduct might be run afoul of the NLRA or not. Depending on which board is- is there, but that's exactly an issue that will come before the Labor Board.

And they've actually asked for briefs on it, right- about whether or not the Trump era decisions stemming from the Boeing case about whether or not certain handbook provisions are going to be valid or not, right. And maybe going back to a much more objective standard of what a reasonable employee in the workplace find that this violates their Section 7 rights, rather than these sort of right line categories that Boeing set up for whether or not, you know, there are certain per se valid provisions or not depending on the case in which they're applied.

So I think that's always something that's difficult for employers to deal with. And I think that is going to be a hot button agenda item, right? To look at those employee handbook provisions about whether or not there are certain ones that do violate Section 7 rights or not.

Gabe Jiran: Yea that was a big thing that we spent a lot of time here in our firm was looking at social media policies, for example. And then these days, particularly with COVID, a lot of employees are not interacting together. So it's not the traditional situation where you have a group of employees huddled by the water cooler, talking about terms and conditions of employment.

It's all via electronic media these days. And so I think that you know with the advent of COVID and we're seeing how the workplace has developed in that situation that it's going to be even more prominent.

Jarad Lucan: I think that's right. And I think, you know, when we're talking about social media, a lot of the cases that we had seen dealt with whether or not comments were disparaging or not, and violating those types of provisions and, you know, currently given the new case law that came down in the Trump administration as it relates, not only to the Boeing case with handbook provisions being valid or not facially, but even as applied, the Trump board sort of undid some of the other decisions that were earlier, whether Obama administration or earlier, as it relates to employee conduct or misconduct in the workplace, whether it be outbursts during the workday or whether it be outbursts on social media, or if you're in a unionized conduct, picketing misconduct.

All of those had these sort of sporadic tests, right. Apply that whether or not that was going to be misconduct in the workplace or not. What the Trump administration did is they, these are all sort of all over the place, right. It's hard to figure out what is valid or what is invalid in the workplace. And so we're going to look at it simply on the stance of, you know, would I discipline this employee as an employer otherwise, right?

 Despite any of the Section 7 activity, would this person be disciplined? And so if an employer would discipline anyone for engaging in sort of outbursts in the workplace or what we would call a misconduct in the workplace or disparaging conduct, then that potentially would be valid discipline. Wouldn't run afoul of the NLRA. I think we're going to see this Labor Board, right? When it has the right cases, come before it go back to a more nuanced approach to that in terms of there being different standards, depending on whether it's social media, whether it's in the workplace, whether or not it's in a unionized context in bargaining or whether it's just an employee dealing with their employer specifically by themselves. So…

Gabe Jiran: Yeah, I mean, it makes it very difficult for employers out there, you know, to keep up with these changes. I mean, that as labor lawyers, you know, it's like its job security, I guess, but it really is… it's difficult for employers to understand.

And that, that was one of the problems I had a lot with the handbook reviews is that the standards that were being used were what would a reasonable employee think? Would they be confused about their ability to do certain things and I think that again using that pendulum example on one hand, it was very protective of employees and then it got less protective of employees and I don't know if we'll land in the middle, I'm hopeful.

Jarad Lucan: Yeah. Well, I think that's what the Boeing case really tried to do. Right. Was take certain rules that were so obviously not going to violate your Section 7 rights and make them into certain categories. I think that objective standard was always difficult because it's objective.

What would a reasonable employee think? You know, it almost was sort of insulting to employees, right? That you need to be protected because a confidentiality rule clearly prohibits you from talking about wages. And when clearly the confidentiality rules are meant to protect certain important information in the workplace, particularly proprietary information. Right. So I think that hopefully the Board will get bad cases, make bad law. So, you know, with the agenda going forward, if it's the right cases and it gives some clarity, that's helpful for employers as well.

Gabe Jiran: Yea, true. Another thing that caught my eye, I think it was in the General Counsel memo was they were looking at remedies available and, um, it sounded like they were going to look for more expansive remedies.

For example, if, uh, an employee is terminated and it's shown to be for anti-union animus or something else. It's violative of the act. It sounds like they're really going to swing for the fences as far as remedies for these employees.

Jarad Lucan: Yeah. So, you know, there was some congressional push for punitive damages, right-under the NLRA.

But what the- what the General Counsel has indicated is that they want to make the full panoply of remedies available that they can. And so they would be looking at if it's an unlawful termination, potentially things like consequential damages from pay and liquidated back pay. There's always an issue that comes up as it relates to, you know, whether purposely or not hiring undocumented workers, right.

And what the penalties would be for that in terms of any kind of unjust enrichment to the employer. So they've actually spoken about whether or not that those employers would need to potentially sponsor work authorizations for their employees as a penalty. And then if we're talking about in the unionized conduct or a union organization drive, you know, granting certain information to the union could be a penalty requiring employers to reimburse unions for costs occurred in their organization efforts.

If there was an unfair labor practice throwing the organization could be something that we're looking. And also providing certain training to supervisors and managers on the NLRA. So even beyond just the economic things, you know, looking at access to unions as a penalty, looking at training employers specifically on NLRA as a penalty is sort of beyond what we're seeing right now.

Gabe Jiran: Um, and I guess the way I look at it is that, you know, employers should be following the law, you know, and if they don't, then obviously there should be consequences for that, but it'd be interesting to see just how expansive those remedies get and whether they're designed to remedy the behavior at issue or go another step and be punitive.

And it sounds like the, at least the General Counsel is sort of viewing it as going more on that punitive side. So now it becomes maybe a preemptive measure or a disincentive for employers to act certain ways.

Jarad Lucan: Yeah. I mean, I think it is, I think it's both right. I think there's an aspect of punishing really bad conduct, right- in a punitive way and potentially trying to, in the General Counsel's mind, further the purposes of the act. Right.

And, and, but there are certain things in those memos that sort of suggests that you know, for example, sort of beyond the normal remedy, right? One example of that would be potentially hiring a qualified applicant of the union’s choice in the event of a discharge of an employee who is unable to work.

So it sort of goes beyond sort of the punitive and nature of it to almost more advocating on the employee side and the union side, which isn't really what the Labor Board should be doing, right. It should be a neutral in deciding cases, but you know, the memo suggests maybe otherwise.

Gabe Jiran: Another thing that is in the, uh, the memo or is I guess an initiative of the NLRB has to do with Weingarten rights.

So Weingarten for our audience, you may be familiar with this, but this is basically the right of an employee in a union environment to have a union representative. If they are coming into a meeting where they have a reasonable belief that disciplines going to result that, you know, has been pretty consistent over the years.

It sounded like from the General Counsel memo that the NLRB might be looking to expand Weingarten. Is that right?

Jarad Lucan: It's possible. Yeah. I would think under again, looking to whether or not we're expanding it beyond just the, at the moment, it only applies to the union context and so there has been case law that has gone back and forth.

And this is an issue that is going back and forth over the years of whether or not an individual employee outside of a unionized context has the ability to have Weingarten rights, right- to have a representative with them if they think they're going to be disciplined at any kind of meeting. The General Counsel memo suggests that that might be a way, a route in which they might be looking to go again, sort of bringing us back to previous case law at the NLRB.

Gabe Jiran: Yes, so this is truly one of those topics where it's been a flip-flop. because I can remember, I think it was a pretty brief period of time where employees had the right, if your non-union employee, had the right to bring a coworker with them, for example. Right. So that, I mean, who knows, we may be going back to that standard or something else.

Uh, which I, you know, I don't know how I feel about that. I have some clients who actually will offer to have a coworker come in because it's, sometimes it helps a difficult conversation. It seems like that should be the employer's choice rather than required to do that but I guess we'll have to see how that one turns out.

Jarad Lucan: And in particular, right. In the unionized context, that makes sense. Right? Cause you're furthering the collective bargaining, right. You're furthering making sure that the contracts being followed and furthering those rights, which don't necessarily exist in the non-unionized context, but agreed. I mean, I think from a practical stance, sometimes as an employer, it might make sense to have another individual there to make sure that a process is followed and that, you know, there's witnesses to what happened, to be honest.

Gabe Jiran: Yeah, well, that's a great point. That's something we, we advise clients all the time is to have a witness when you're dealing with disciplinary matters. And that certainly holds true. Whether there's a decision from the NLRB that requires it or not, but you know, we'll just have to see how that plays out. And then of course, what is the role of the person?

Jarad Lucan: Sure, I mean, the role is always limited in that you obviously, if you're having an investigative meeting, you want to hear from the employee. The employee that's being investigated, even when there's a unionized context, right? That's a limited role in terms of maybe providing advice or clarifying questions, but we're not asking to hear from the representative you want to hear from the employee.

It's interesting though, right? Because you’ve got to be concerned if you have confidentiality rules and investigations, those are things that you might want to consider. And those will certainly overlap if there's any change in the Weingarten rights about whether there was confidentiality in certain investigations, or if you can maintain that with the coworker who might not be part of the investigation in any way, shape or form.

 Gabe Jiran: Yeah, that’s a good point. And that was a struggle because you have to make a judgment call at the outset, you know, as to kind of like weighing the benefit of having the other employee there as a, as a support mechanism. Or whether you want to exclude a certain employee because you need to make sure that the investigation is done in a way that there's no influence so that, you know, one employee is not going out and trying to tell other witnesses what to say and such.

So that'd be a really interesting one to, to follow as it goes forward. I mean, I don't know of any cases currently that are on the docket for that one. But obviously, if the General Counsel was highlighting it, that we could see one of those.

Jarad Lucan: Sure.

Gabe Jiran: All right. Well that about does it for our time today.

However, this is just part one of a two-part discussion between myself and Jarad and, in part two, we're going to talk about significant NLRB decisions and their effect on employers and in particular, there's a couple of cases that actually hit on these, General Counsel initiatives that are pending right now and could change the landscape of how employers and unions, interact and deal with certain issues. So that will be coming soon. And, we thank everybody for your time today and, uh, we look forward to you joining us again soon. Thank you.

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