On August 13, the NLRB General Counsel’s office issued a number of new and interesting advice memoranda. An advice memorandum issues when a region asks the General Counsel’s office for advice about how to resolve an unfair labor practice charge. The General Counsel’s office writes a memo explaining how they evaluate the case and their advice on how the charge should be resolved (either dismissed or proceed with a formal complaint).
There are two types of advice memoranda released to the public. The first is a memorandum where the General Counsel directs a region to dismiss a pending unfair labor practice charge. Those are required to be released under NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975). The General Counsel also has discretion to issue memoranda on closed cases, but those aren’t required to be released.
The advice memoranda issued earlier this month cover a number of pressing issues around what types of employee protest activities qualify for protection under the Act. They also cover several issues unionized companies face during the Covid pandemic. These are very practical questions, and it is very helpful to see how the regions are being directed to respond to these cases.
In Cudd Energy (28-CA-240949) the General Counsel was asked to weigh in on a case where an employee at an energy company went off on the company’s decision to use a new type of fracking equipment. In an f-bomb laden Facebook post the employee railed against the change and threatened to not help or assist anyone with the equipment unless he got a raise. The charge went further to allege that the employer’s social media policy was overbroad.
In this case the General Counsel found that the Facebook post was unprotected. To get protection under the act the employee’s activity must be concerted. In this case the employee’s complaints were individual grievances – he did not want to work on the new equipment and disagreed with the decision. Furthermore, there was no attempt to engage in concerted activity – he said he would not help others unless he got a raise.
Even though the outburst was on Facebook where coworkers could have seen or liked the post (there was no evidence on either of these points) the General Counsel found these would not have changed the nature of the conduct. It remained an individual railing against his employer on social media. Since the activity did not give rise to protection under the Act, the appropriateness of the social media policy was no longer an issue.
Hornell Gardens (3-CA-258740) dealt with a similar issue – whether an individual grievance converts to concerted activity gaining protection under the Act. In this case a nurse protested against being required to share isolation gowns. After complaining to the employer in an employee meeting, she ultimately threatened to walk off the job in protest, which she eventually did. The employer terminated the nurse for abandoning her patients. Later, when interviewed over the incident, the employer was quoted saying they would notify the state licensing agency of the action.
The nurse filed an unfair labor practice arguing that her termination was unlawful and that the interview was a threat in retaliation for her protected activity. The General Counsel found, like in Cudd, that the complaints here were individual grievances. While she did raise concerns during a meeting in front of others, her complaint was that she did not want to share gowns. Her walkout was also personal – while she mentioned it to others, she did not try to get others to join and she was the only nurse to leave.
The General Counsel also found that the reporting to the licensing agency did not give rise to a claim for retaliation. First, because the initial activity was not protected or concerted. Second, because the walkout was a violation of her licensing requirements and reporting this was routine.
One other protest case also did not qualify for protection under the Act. In Starbucks Coffee Co. (4-CA-252338) a protest was held inside a Starbucks store. In addition to the non-employees involved in the protest a number of off-duty employees also participated. The company terminated the off-duty employee participants for participating in the protest which had the purpose and effect of disrupting company operations. The off-duty employees claimed their actions should be protected by the Act.
The General Counsel found that the protest and disruption by off-duty employees lost protection of the Act. Unlike actions for on-duty employees (pointing to the decision in Wal-Mart) the actions of off-duty employees who caused a disruption inside the store was not protected activity. The General Counsel declined the opportunity to ask the NLRB to reconsider the Wal-Mart case regarding disruptive protests inside a store.
In another case the General Counsel found that complaints about employer safety issues during Covid did qualify for protection under the Act. In Marek Brothers Drywall (16-CA-258507) an employee complained about lack of handwashing or sanitizing stations during a safety meeting. These complaints were not personal to him – during the safety meeting he referred to his coworkers and asked them to join with him in his complaints. The General Counsel found that this activity did qualify for protection under the Act, and therefore found that the employer engaged in an unfair labor practice by discriminatorily laying him off.
The other notable case dealt with unionized companies. In a situation that is coming up time and again with unionized companies, the General Counsel found that companies are not required to re-open labor agreements mid-term to negotiate over terms and conditions related to the Covid pandemic. In Memphis Ready Mix (15-CA-259794) the union asked the employer to re-open their contract to bargain over paid sick leave and hazard pay for employees covered by the agreement. The General Counsel determined that employers are not required to open a contract for mid-term bargaining over issues related to the pandemic.
These advice memorandums are helpful guides to answer many of the thorny questions raised during the pandemic. I hope these summaries are helpful and we’ll keep an eye out for new ones.
