During the first month and a half of 2018, the National Labor Relations Board (“NLRB” or “Board”) released a torrent of memoranda authored by its Division of Advice (“Advice”), a section of the NLRB’s Office of the General Counsel. As you may have read on our blog before, Advice memoranda are issued by the NLRB’s General Counsel in response to requests from NLRB regional offices for interpretation of the National Labor Relations Act (“NLRA”) in fact-specific situations. Although non-binding and non-precedential, the memoranda are regarded as authoritative guidance from the General Counsel.
Advice memos are generally confidential and only are released to the public, in the discretion of the General Counsel, after the case in which the advice sought has been resolved (or occasionally under other unique circumstances). Because of this, the memos are often released months, and sometimes even years, after they are first issued. Indeed, several of the memos in this recent 2018 flurry date back to 2013, and one as far back as 2009. These older memos must be read with caution, as intervening changes in NLRB policy or legal interpretation of the NLRA that occurred subsequent to a memo’s issue date will necessarily impact its usefulness as an interpretative resource.
For example, several of the recently-released Advice memos applied legal standards that the NLRB overturned in December 2017, such as those relating to the NLRB’s take on employer policies. As you know from our blog, employers became more optimistic when the NLRB, in The Boeing Group, overruled its previous legal standard – the Lutheran Heritage standard, named for the case in which it was announced – under which it analyzed and so commonly found employer policies to be unlawful, and in its place stated a new standard promising to provide greater consideration to employers’ interests in maintaining workplace policies.
The list of recently-released Advice memoranda – 44 just in February 2018, so far – includes only two Advice memoranda issued this year. Below is a summary of these two memos, and some other more recent memoranda that would be of interest to any employer, whether union-organized or not. Continue Reading