Seyfarth Synopsis: On Friday, December 1, 2017, newly appointed NLRB General Counsel Peter Robb issued a memo containing a broad overview of his initial agenda as General Counsel. It previews many anticipated developments during the Trump Administration. Our blog is exploring a different aspect of the memo each day during the first three weeks of December. Click here to find prior posts.
With the publication of Friday’s General Counsel Memorandum (GC Memo 18-02), employers may finally begin to see a much-anticipated shift at the NLRB that many have been waiting on since last year’s election.
Of particular concern for many employers is the NLRB’s interpretation of commonplace work rules contained in employee handbooks. According to recently-confirmed General Counsel Peter Robb, cases involving potentially unlawful handbook rules must now be submitted to the Division of Advice. In particular, GC Memo 18-02 notes that the Division of Advice is interested in cases involving rules prohibiting disrespectful conduct, rules prohibiting use of employer trademarks and logos, and no cameras/recording rules.
Perhaps most notably, GC Memo 18-02 expressly rescinds the prior General Counsel guidance concerning employer work rules contained in GC Memorandum 15-04. There, former General Counsel Richard Griffin offered thirty pages of guidance on potentially unlawful workplaces rules under the Board’s standard set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).
This standard has been criticized in a number of recent dissents, including a lengthy critique by Chairman Miscimarra in William Beaumont Hospital, 363 NLRB No. 162 (2016) (see post here). There, then Member Miscimarra advocated for entirely abandoning the Board’s standard in Lutheran Heritage under which the Obama NLRB greatly expanded the scope of workplaces rules considered to be unlawful under the NLRA.
Lutheran Heritage provides that a facially-neutral rule that does not expressly restrict Section 7 activity, was not adopted in response to Section 7 activity, and has not been applied to restrict Section 7 activity, may still be unlawful if employees would reasonably construe the rule as restricting Section 7 activity. In William Beaumont, Chairman Miscimarra suggested that an alternative approach would be to evaluate facially-neutral rules on “(i) the potential adverse impact of the rule on NLRA-protected activity, and (ii) the legitimate justifications an employer may have for maintaining the rule.”
In GC Memo 18-02, the General Counsel appears to suggest that he may support Chairman Miscimarra’s proffered test. The General Counsel specifically notes that the Division of Advice is interested in any cases in which the outcome would be different under the Chairman’s analysis in William Beaumont. The full implications of Chairman Miscimarra’s proposed test for handbook provisions is unknown. What we can say for sure is that the Chairman sees value in the publication of workplace rules and policies and that he has advocated for predictability and practicality, music to many employers’ ears. With the General Counsel in place and a full five-member Board confirmed by the Senate, employers may have additional reasons to look forward to 2018.