New NLRB General Counsel Issues Internal Memorandum Signaling Beginning of Shift in NLRB Policy
On December 1, the newly sworn-in General Counsel of the National Labor Relations Board (“NLRB” or “Board”) Peter J. Robb issued an internal NLRB memorandum(which was subsequently released to the public) that does more than just hint at changes to come in Board policy on many of the hot button issues that have been putting employers on edge over the past eight years. Indeed, Mr. Robb’s recent memo confirms the NLRB will move swiftly to review and likely overturn many high-profile decisions issued by the previous Democrat-majority Board under the Obama Administration.
Under the past administration, the NLRB issued many opinions that went straight for the jugular of employer operations – including, for example, finding unlawful employment policies, many contained in ordinary employee handbooks, intended to maintain a productive and respectful workplace, controlling permitted use of employer email system access, and even ensuring compliance with other employment laws, such as equal employment opportunity. The General Counsel’s memo expressly directs NLRB field offices to submit cases involving “significant legal issues” for advice from the General Counsel’s office. The memo provides several examples of the types of cases the new General Counsel wishes to consider putting in front of the now Republican-majority Board, including the topics above, and others, such as whether rules prohibiting photography and recording in the workplace, or unauthorized use of company trademarks or other logos, or requiring confidentiality of workplace investigations, violate employee rights to engage in protected concerted activity under the National Labor Relations Act.
Although Mr. Robb’s memo states it should not be considered a commentary on the outcome of his office’s review of these issues, it does reference the dissenting opinions in a number of the previous NLRB decisions that were very poorly received by the employer community, many of which were penned by Board Chairman Philip Miscimarra, who is viewed to have more support for his position now that the Board composition includes a majority of Republican members. Further signaling the new direction in which NLRB policy is headed, the General Counsel officially reversed initiatives to expand the impact of certain Board decisions, such as one seeking to expand the decision in Purple Communications, which gave employees broad rights to use employer email systems to engage in concerted activity, to other electronic systems, such as phones, internet and instant messaging.