Developments in the NLRB’s Office of the General Counsel


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

Ronald Meisburg is General Counsel of the National Labor Relations Board (NLRB). The General Counsel’s office prosecutes unfair labor practice charges against employers and unions. His decision on when to issue a charge can be very significant and may help shape the NLRB’s decision making.

Periodically, the General Counsel (GC) issues “Guidelines” to the NLRB’s Regional Offices. These Guidelines serve as road maps to guide the Regional Offices in investigating unfair labor practice charges and determining whether to issue a complaint. Meisburg recently issued a significant GC Memo and plans to issue another memorandum to determine whether political activity may constitute protected, concerted activity under the Act.

GC Memorandum 08-04 (February 15, 2008) dealt with what are known as “salts;” union organizers who seek employment for the purpose of union organizing. Sadly for employers, the courts have held it is an unfair labor practice for an employer to refuse to hire such a person solely because of their intention to organize that employer’s employees. The NLRB had presumed that anyone who applied for a job was an employee protected by the law. However, in Toering Electric Company, the Board changed the burden of proof in salting cases. The Board imposed the additional requirement upon the General Counsel to prove the individual had a genuine interest in seeking to establish an employment relationship with the employer. The General Counsel issued instructions to the Regional Offices investigating refusal to hire cases involving “salts.” To prove that an applicant had a genuine interest in employment, Meisburg says evidence that the individual submitted an application in accordance with the employer’s procedures; arrived on time for interviews; made follow-up inquiries regarding the application; had relevant work experience; and was seeking similar employment with other employers; all constitute evidence of a genuine interest in employment. To refute such evidence, the employer must prove the applicant was not truly interested in a job. The applicant’s behavior during the application process, as well as his or her work history, could all become very relevant evidence.

General Counsel Meisburg also announced he would soon issue a Guideline Memorandum on handling unfair labor practice charges alleging employees were disciplined for participating in rallies regarding immigration legislation or engaging in other political activity. Under present law, in order to be protected, the activity must involve advocacy for or against a “specific proposal” and not a general ideal or a candidate or a political party. Further, the advocacy must have a direct nexus with the interests of the employees as employees. For example, Meisburg indicated that participation in the May 2006 immigration rallies “appeared to satisfy” the requirements for advocacy regarding a specific proposal that had a nexus with immigrant workers’ interests as employees. Meisburg went on to explain that if political activity qualified as protected, concerted activity, then that activity must be balanced against the employer’s legitimate business interests in deciding whether to issue a complaint, should  the employer take disciplinary action against an employee who had engaged in such advocacy. The balancing of such interests might, for example, focus on whether the employee missed work without permission, or did so on his or her own time. According to Meisburg, it clearly would be an unfair labor practice for an employer to discipline an employee who went to a rally during nonworking time.

 

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