NLRB Releases More New Advice Memos
Following the release of a multitude of advice memoranda earlier this year, as we reported in our February 2018 and March 2018 E-Updates, the National Labor Relations Board’s Office of the General Counsel (OGC) has now released additional memoranda. As before, some of these memos were originally prepared years ago, but they were not released to the public until this month. Of particular interest are the following:
- Securitas Security Services USA, Inc. (September 17, 2017). The union’s representation petition named only Bechtel’s subcontractor, Securitas, as the employer. Nevertheless, the OGC found that the union had not waived its right to bargain with Bechtel as a joint employer because the union had not been fully aware of the relationship between Bechtel and Securitas, and therefore its conduct “does not evidence a conscious and deliberate pursuit of a bargaining relationship limited solely to Securitas.” In addition, the OGC found that Bechtel was not deprived of due process because it received timely notice of the alleged joint employer status.
- Adams & Associates, Inc. (November 20, 2014). Applying either the Board’s then-current joint employer standard or the GC’s proposed standard, the OGC found joint employer status to exist. Notably, the joint employer standard is an issue of considerable continuing controversy. In 2015, the Obama Board issued Browning-Ferris Industries, which essentially adopted the GC’s proposed standard and vastly expanded the universe of who would be considered a joint employer. This decision was overturned by the Trump Board in December 2017 in Hy-Brand Industrial Contractors, Ltd., which returned to the prior standard. As we reported in our February 2018 E-Update, however, the Hy-Brand decision was subsequently rescinded based upon a purported conflict of interest by one of the members of the Board. On May 9, 2018, the Board announced that it is considering rulemaking on this issue. We expect further developments in short order.
- GE Appliances, Haier (April 17, 2018). The OGC held that the employer’s refusal to allow union representatives to record the employer’s monthly team meetings and investigatory interviews was lawful. Long-standing Board policy disfavors verbatim recordings of employer-union meetings where questions arising under the collective bargaining agreement will be discussed. In addition, the OGC noted that the employer’s denial targeted only union representatives, not employees.
- Libra Services, Inc. (April 23, 2018). The OGC found that the employer’s discharge of an individual for questioning his status as an independent contractor did not violate the NLRA. The individual was not engaged in protected concerted activity, as the questions were asked only on behalf of himself (as the only individual designated as an independent contractor in the New York office) and not for the purpose of mutual aid or protection of other co-workers. Moreover, there was no indication that the individual would be seeking to engage in such activity in the future.