President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats. Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers. The Board already has such an opportunity in Register Guard. The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the employer’s email system, including union-related communications. Register Guard established that employers may prohibit this type of email even if the employer permits employees to send personal messages via email, such as an announcement of someone’s birthday, as long as the employer did not discriminate between union and nonunion communications of a similar nature.

In Oakwood, the Board broadly defined a “supervisor” under the National Labor Relations Act (“NLRA”) as a person who assigns work to other employees using independent judgment and discretion. Supervisors are not protected under the NLRA and can be ordered to assist the employer in its anti-union activities or discharged for assisting a union. The Board stated that an individual’s judgment is independent where it is not dictated or controlled by instructions, such as employer policies or rules.

Should the Board revisit the holding of either case, the result will most likely be employee- and union-friendly.

In her Register Guard dissent, Board Member Liebman (now Chairman) would have found that “banning all nonwork-related ‘solicitations’ is presumptively unlawful absent special circumstances.” When considering Register Guard on remand from the D.C. Circuit, the Board may now follow Liebman’s lead. It will likely hold that the employer cannot preclude employees from using the email system for union-related matters.

  • What can employers do? Employers should try to prohibit union-related solicitations by strictly prohibiting any personal use of their email systems. Circuit courts may uphold such a policy even if Register Guard is reversed along Liebman’s interpretive lines.

In the Oakwood dissent, Liebman wrote that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks. If Oakwood is revisited, the Board will likely interpret “supervisor” less broadly. This would make it more difficult for employers to classify lead persons who assign duties on a daily basis as supervisors. Thus, in a union organizing drive, lead persons would be part of the bargaining unit and could advocate unionization to the workers they oversee.

  • What can employers do? To ensure that lead persons can be classified as supervisors, employers should make sure that they do more than merely assign tasks (e.g. evaluate employees for raises, hire subordinates, make effective recommendations for hire, or authorize time off or overtime).