NLRB Signals Potential Closer Scrutiny Of Employer Work Rules
The National Labor Relations Board’s (“NLRB” or the “Board”) Acting General Counsel, Peter Sung Ohr, recently issued a General Counsel Memorandum rescinding ten guidance memoranda issued by his predecessor, former NLRB General Counsel Peter Robb.
In his Memorandum, Acting GC Ohr asserted that these ten guidance memoranda are inconsistent with the National Labor Relations Act’s (“NLRA”) stated purpose of protecting union organizing rights or are otherwise “no longer necessary.”
Guidance Memorandum 18-04
Of greatest significance for employers generally is Acting GC Ohr’s withdrawal of the Board’s guidance memorandum GC 18-04, which was issued on June 6, 2018. As noted in a previous e-alert, GC 18-04 detailed the Board’s new, more employer-friendly approach to determining whether employer work rules violate employees’ rights to engage in union organizing or other protected concerted activity, as announced by the Board in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).
Based on the Boeing decision, GC 18-04 instructed NLRB Regional Offices that most facially neutral employer work rules – such as rules requiring confidentiality or banning cameras in the workplace – should be found lawful. This was a marked change from pre-Boeing Board precedents, under which work rules could be struck down as unlawful if, in the Board’s view, they could be “reasonably construed” by employees as restricting their ability to engage in protected activity under the NLRA.
In his Memorandum, Acting GC Ohr stated that GC 18-04 “is no longer necessary, given the number of Board cases interpreting Boeing that have since issued.” Given the NLRB’s new Democrat majority, however, the withdrawal of this guidance memorandum may also be a sign that when a suitable case is presented to it, the new Board majority will overrule Boeing and return to the more employee-friendly standard that was previously in place.
As with GC 18-04, Acting GC Ohr’s withdrawal of the other affected NLRB guidance memoranda generally works to the advantage of unions. For instance, one of those guidance memoranda argued for a new legal standard that would have made it more difficult for a union to defend itself against a claim that it breached its duty to represent all of its members’ interests fairly. Two of the other now-rescinded guidance memoranda instructed Regional Offices to advocate for broader disclosure requirements for unions regarding member dues and employees’ right to opt out of paying a portion of those dues.
Acting GC Ohr has stated that he will be issuing further memoranda in the near future setting forth changes to Board policies. As with the withdrawal of GC-18 and the other guidance memoranda, we can anticipate that these policy revisions will be favorable for unions.
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If you have any questions about this development or other anticipated changes under the NLRA, please feel free to contact one of our experienced labor and employment lawyers.