A New Year, A New Batch of NLRB Advice Memos


The National Labor Relations Board’s Office of the General Counsel (OGC) continues to issue Advice Memoranda, as it did throughout 2018 and as we previously discussed in many of our monthly E-Updates. Five more memos were issued in January, several of which were originally prepared years earlier, with the others prepared last month. Notably, many of the principles articulated in the memos apply to both non-union and union employers. Of particular interest are the following:

Service Employees Int’l Union (Nov. 6, 2017). In a case that involves a union as the employer, the GC found that the SEIU violated its own employees’ rights under the National Labor Relations Act to engage in on-the-job protests over the terms and conditions of employment when it sent home five employees from an SEIU-organized convention for engaging in confrontational action and interrupting the President’s speech. The GC affirmed the application of the ten-factor Quietflex test, which balances the rights of employers and employees during work stoppages:

  1. the reason the employees have stopped working;
  2. whether the work stoppage was peaceful;
  3. whether the work stoppage interfered with production, or deprived the employer access to its property;
  4. whether employees had adequate opportunity to present grievances to management;
  5. whether employees were given any warning that they must leave the premises or face discharge;
  6. the duration of the work stoppage;
  7. whether employees were represented or had an established grievance procedure;
  8. whether employees remained on the premises beyond their shift;
  9. whether employees attempted to seize the employer’s property; and
  10. the reason for which employees were ultimately disciplined.

Applying these factors, the GC found that the employees did not lose the protection of the Act when they briefly stopped work to attempt to deliver to the President a letter seeking union representation.

Moreover, the employer’s removal of the five employees from the convention constituted an adverse employment action. An adverse employment action requires a showing that “the individual’s prospects for employment or continued employment have been diminished or that some legally cognizable term or condition of employment has changed for the worse.” It need not involve a loss of wages. In this case, the GC found that removal from the convention compromised the employees’ standing and jeopardized their ability to fulfill their ongoing responsibilities. Thus, by taking an adverse employment action against the employees for engaging in protected activity, the employer violated the Act.

Duke Energy Indiana (Dec. 17, 2018). The GC found that the employer’s implementation of non-solicitation/no-hire provisions with third-party subcontractors was not a mandatory subject of bargaining with the union. According to the GC, “the Union does not have authority to negotiate the terms of third-party agreements to which it is not a party, notwithstanding the effect that the non-solicitation provision has on the unit employees’ terms and conditions of employment.”

TLC Health Network dba Lake Shore Health (Mar. 19, 2014). According to the GC, the employer violated the Act when it discharged a supervisor for voting in a Board-supervised election. Her supervisory status was unclear before the election, and the only way for her to obtain Board resolution of her status was to vote. Thus, her discharge impeded access to Board processes and interfered with her rights under the Act.