Written by:  William A. Earnhart

The newly appointed General Counsel to the NLRB, Peter B. Robb, issued a memorandum of “Mandatory Submission to Advice” on December 1, 2017, rescinding several of his predecessor’s policy memoranda and indicating a second look at a number of policy positions advanced under the Obama administration.

The relatively short memorandum addresses a broad range of policy issues promoted by the Board under the Obama administration, from employee classification to intermittent and partial strikes.  Of particular interest to both union and non-union employers is the rescission of GC 15-04 (Report of the General Counsel Concerning Employer Rules) and the General Counsel’s intention to take a new direction in regard to concerted activity for mutual aid and protection.  Lately, the Board has found facially neutral employer handbook rules and policies against obscene or inappropriate conduct, as well as electronic media, confidentiality and security policies, to violate the Act.  This memorandum suggests a willingness to overrule recent precedents on these issues.

It should be noted that the memorandum makes clear that these policy decisions will need to be implemented by the Board and that the Office of the General Counsel will “not be offering new views on cases pending in the courts, unless directed to by the Board or courts.”  Thus, any change will likely happen slowly as the NLRB processes cases. This is certainly not a win for labor unions; many of the proposed policy changes could ultimately be beneficial to all involved in employer relations by tempering some of the excesses of prior Board decisions. It has been argued that the Board has undermined its legitimacy by making decisions that, although legitimate in respect to union organization, seriously undermine the rights of coworkers in having a safe and respectful work environment.  Recognizing that the Board’s role is often to interpret the scope of “protected activities,” employer/management advocates have repeatedly questioned the rationality of finding employer policies against obscenity and disrespect unlawful.