The Light at the End of the NLRB’s Tunnel?

By Fiona W. Ong - Shawe & Rosenthal LLP

December 6, 2017

As my colleagues know, I have been unbelievably frustrated over the past eight years about the National Labor Relations Board’s (overly) aggressive pro-union approach. As I have previously complained, during this period, the NLRB has taken unreasonable and illogical positions on issues that for many years had been considered settled and balanced between the interests of employees and employers. These include issues we’ve previously blogged about, including handbook rules (you can’t prohibit recording in the workplace, you can’t prohibit employees from disclosing confidential personnel information), employee conduct (you must tolerate racist and sexist picket line conduct that violates Title VII), and joint employer status (which is found in almost every case, under the NLRB’s test).

With the change in administration, the employer community was hopeful that many of these anti-employer decisions would be rolled back. And less than a month after being confirmed as the General Counsel of the NLRB, Peter Robb has indicated an interest in revisiting many of these decisions – so there may be light at the end of the tunnel! In a December 1, 2017 memorandum, GC 18-02 “Mandatory Submissions to Advice,” issued to all Regional Directors (and others), GC Robb noted that “the last eight years have seen many changes in precedent.” He then directs the Regional Directors to submit cases involving “significant legal issues” to Advice, and provides examples of such issues (many of which involved “changes in precedent”), including the following:

• Concerted activity for mutual aid and protection under Section 7 of the National Labor Relations Act (“Finding no loss of protection despite obscene, vulgar or other highly inappropriate conduct” (emphasis added))

• Common employee rules found unlawful (such as those prohibiting “disrespectful” conduct, use of employer trademarks and logos, workplace recordings, confidentiality)

• Use of employer e-mail systems for Section 7 activity

• Finding work stoppages protected (“giving heavier weight to those factors that tend to favor protection”)

• Providing employees with off-duty access to employer property (“equating picketing with handbilling despite greater impact on legitimate employer interest” (emphasis added))

• Conduct that conflicts with other statutory requirements (“Finding social media postings protected even though employee’s conduct could violate EEO principles” (emphasis added))

• Joint employer status “based on evidence of indirect or potential control over the working conditions of another employer’s employees”

Notably, GC Robb’s choice of language in describing these issues (e.g. “despite,” “even though”) clearly indicates his disagreement with those decisions and suggests a willingness to reverse these positions in future cases.

Of further interest, GC Robb also states that past GCs “have often identified novel legal theories that they want explored through mandatory submissions to Advice.” In the same breath, he then rescinds various GC memos, presumably because they contain such “novel legal theories” with which he disagrees. Of particular interest, GC 15-04 “Report of the General Counsel Concerning Employer Rules” is one of those rescinded memos. This memo provided a detailed overview of various categories of common employer handbook rules and identified specific policy language that then-GC Peter Griffin deemed to be unlawful (e.g. prohibitions on “negative,” “disrespectful” or “rude” behavior towards the employer or management; prohibitions on “offensive,” “derogatory,” “insulting” or “embarrassing” comments to co-workers; prohibitions on workplace recordings). With its rescission, the NLRB’s aggressive positions on such policies are now called into question.

But of course, this could all change again with the next administration. And that light at the end of the tunnel? Well, it could just be the next pro-union train, ready to flatten employers once again.