By Samuel Morris

Law360 (December 11, 2020, 1:45 PM EST )

Samuel Morris

While it remains to be seen how foreshortened National Labor Relations Board general counsel Peter Robb's tenure will be in the new administration, it is likely that his crescendo of memoranda in number and degree of departure from precedent will end soon.

Robb has used rulemaking and advice memos to change the law in favor of employers, like no GC in recent history.

Here are the latest three.

Portola Gardens

In this case,[1] the employer, Portola Gardens, was an assisted-living facility located in San Francisco. The charging party concerned in this advice memo was Local 2015 of the Service Employees International Union located in Los Angeles.

Local 2015 had a collective bargaining agreement, or CBA, with the employer that operated the assisted living facility before it was purchased by Portola Gardens. Following the current employer's acquisition of the assisted living facility, the employer made several unilateral changes to employee benefits and wages. Portola Gardens also refused to deduct or remit employee union dues.

In April 2018, Local 2015 filed a grievance with the employer demanding that the employer remit union dues. The employer responded the same month with what amounted to a total repudiation of the previous CBA and disavowed any obligation to pay union dues. The union simply refiled the exact same grievance in May and June 2018. Receiving no response from the employer, the union filed a Section 8(a)(5) charge with the NLRB alleging that the employer refused to bargain with the union. 

Without serious consideration of the continuing nature of the violations, the advice memo found that the six-month limitations period of Section 10(b) began at latest in May-June 2018 when the union's second and third grievances went unanswered. The charge was untimely, and the new employer left free to implement all its changes

The takeaway for both parties from this memo is that the statutory time limit is not restarted provided there is knowledge of a violation simply by filing a new grievance.

Greyhound Lines

The charging party here[2] was an employee that was forced to return to work earlier than that employee's previously set recall date when he was voluntarily furloughed due to the pandemic. Greyhound Lines Inc. allowed some employees to voluntarily furlough with predetermined recall dates. When increased customer demand required more employees, the employer recalled its voluntarily furloughed employees in order of reverse seniority. This procedure was the one in place per the CBA. 

However, the procedure for recall of employees with a predetermined recall date was not specified under the language of the CBA. To remedy this, the union agreed to sign a memorandum of understanding to clear up the ambiguous language of the CBA, with the employer's approval.

Around the same time that the memorandum was being signed, the charging party complained to their union vice president about the procedure and the vice president indicated that he was going to have to "fight the employer" on this matter.

Despite the charging party's concerns, the memorandum was signed. The employee charged that the union breached its duty of fair representation by agreeing to modify the furlough provisions in the CBA in a manner that was detrimental to the charging party. 

The NLRB's advice memo found that the charge lacked merit. Because the union vice president did not know about the memorandum when he spoke to the charging party, there could be no evidence of animus against the charging party, and the charging party never asked the union to file a grievance. Of course, it was also likely not insignificant that the employer wanted the recall to go the way the advice memo cleared the way for it to go.

This assessment of the parties' agreement on a key seniority issue is not limited to the COVID-19 scenario; employers and unions are free to negotiate agreed-upon seniority terms so long as there is no nefarious intent in doing so.

El Sol Contracting

This very short advice memo[3] concerns whether an employer violated the National Labor Relations Act by laying off the charging party, a temporary employee, during the pandemic and subsequently recalling a former employee rather than the charging party. Sections 8(a)(3) and (4) of the NLRA prohibit employers from discriminating against employees because of union activities or sympathies and from discharging or discriminating against employees who have filed NLRB charges.

The NLRB found that the temporary employee's charge lacked merit citing undiscussed previous reasoning and because the charging employee's employment was temporary anyway. This is consistent with the GC's approach to temporary work, which has been to hold them in a subclass for most purposes.[4]

There isn't much wisdom in this terse advice memo, except that the current GC does not seem too concerned about temporary employees' rights under the act.

Advice Going Forward

Given the changing political winds, these memos wane in legal importance but are important to follow in the short term in dealing with the NLRB regions who have to account for the latest and greatest from the GC in their daily activities. 

The three memos are mild by comparison to major policy changes announced in memos in the recent past. This GC has seen fit to change law developed under the NLRA by years of precedent, simply by issuing memos and rulemaking. 

Since the NLRA is a statute carefully crafted by Congress to be administered by the board itself, policies have been developed over the decades by decision. Case names have been attached to them, such as the Excelsior rule[5] requiring voter lists, which this GC has attempted to make meaningless by rulemaking.[6]

Who knows what will be next, if he fills out his term: Overruling the protections for witnesses laid out in the Johnnie's Poultry rule[7] or eliminating Weingarten[8] rights to union representation?

Since legislative change has been impossible in the current Congress, this GC has taken the reigns to try to change the law all by himself. Since Jan. 1, 2019, there have been 29 notices of rulemaking, and no fewer than 51 published advice memos. In my experience as a practicing attorney since 1980, there is no comparable effort in the board's history.

The unprecedent efforts of this GC to dramatically change the law from his chair will be winding down soon. It is unlikely that a new GC will utilize the advice memo or rulemaking tools to attempt to radically change decades of established precedent, without the input of the board itself, as has occurred recently.

The agency will likely revert to developing the law, as it has in the past, by adjudication, and to using advice memos as just that, giving advice to NLRB regions when faced with a borderline issue.

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Samuel Morris is an attorney at Godwin Morris Laurenzi & Bloomfield PC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 20-CA-246636.

[2] 10-CA-261228.

[3] 29-CA-260786.

[4] See Advice Memo, Children School Services, 05-CA-258669.

[5] Excelsior Underwear Inc. 156 NLRB 1236 (1966).

[6] See https://www.federalregister.gov/documents/2020/07/29/2020-15596/representation-case-procedures-voter-list-contact-information-absentee-ballots-for-employees-on.

[7] Johnnie's Poultry Co. , 146NLRB770 (1964).

[8] NLRB v. J. Weingarten, Inc. , 420 U.S. 251 (1975).

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