Although the National Labor Relations Act (NLRA or Act) has not been amended in more than half a century, the National Labor Relations Board (NLRB or Board) under the Obama administration significantly broadened its interpretation of the NLRA, which resulted in an unprecedented expansion of the Act’s scope and reach into private sector workplaces. With a new administration, however, have come new NLRB board members and, significantly, a new General Counsel. The NLRB General Counsel exercises significant control over which cases the agency pursues and what issues get presented to the Board for decision.
Following his Senate confirmation as the new NLRB General Counsel on November 8, 2017, Peter Robb wasted no time in issuing instructions to the local NLRB offices, directing them in a December 1, 2017, memorandum to submit to his office for review nearly all cases that involve issues on which the Obama-era NLRB extended the NLRA. While General Counsel Robb carefully noted that his job was to enforce existing NLRB decisions, he indicated that for many of those cases his office may wish to provide the Board with an “alternative analysis” for its consideration. It is likely that the General Counsel’s office will pursue a litigation strategy designed to allow the Board to dismantle many of the decisions that extended the Act’s scope and reach in the past decade.
Among the more controversial NLRB issues specifically identified by General Counsel Robb for mandatory submission to his office are cases that involve:
- Rules in employee handbooks or manuals that prohibit “disrespectful” conduct;
- Cases involving the confidentiality of workplace investigations;
- Employer policies limiting the use of the employer’s e-mail system to work-related activities;
- Joint employer allegations;
- Successorship to a union relationship after the purchase of a business; and
- Responsibilities to a newly certified or recognized union related to discretionary discipline or company-wide pay increases.
It is important to note that the General Counsel cannot, and does not purport to, change precedent issued by the NLRB. Nevertheless, it is likely that the General Counsel’s office will actively search for cases raising these issues that can be presented to the NLRB so that the NLRB may change the precedent. That process can be lengthy—lasting several years—and potentially expensive for an employer accused of violating the Act since the case must go through a full hearing before an administrative law judge and then be subject to appeal to the NLRB. Employers should, therefore, remain cautious when operating in areas that may appear to be the subject of potential changes in the law. However, if business reasons dictate a position that may be at odds with one of the Obama-era precedents, then General Counsel Robb’s newly stated approach may give an employer less reason to fear being found to violate the NLRA. Employers should, of course, consult with their attorneys on specific issues.