NLRB’s New General Counsel Targets “Significant Issues” To Rein In Obama Era Rulings

By: Julia Turner Baumhart

Will the Trump administration NLRB reverse such controversial Obama era rulings as the finding of joint employer status based solely on an employer’s potential control over another employer’s employees?  Or invalidating employer handbook rules prohibiting “disrespectful” conduct or requiring confidentiality of workplace investigations?  In issuing the traditional guidelines for submitting significant legal issues for Advice to the new Board, NLRB General Counsel Peter Robb informed NLRB regional directors and other officials on December 1 he intends to do just that, provided the appropriate opportunity arises.

General Counsel Robb, like his predecessors, identified those significant legal issues that should be submitted for legal advice to the Board, to include “cases over the last eight years that overruled precedent and involved one or more dissents,” as well as cases involving issues the Board has not decided.  This means that, in addition to the NLRB’s 2014 holding that handbook rules prohibiting “disrespectful” conduct are unlawful, the General Counsel also targeted controversial 2015 holdings that invalidated no camera/no recording rules and rules prohibiting use of employer trademarks and logos.

Other targeted rulings include the NLRB’s 2014 finding that employees have a presumptive right to use their employer’s email system to engage in Section 7 concerted activities (Purple Communications).  The General Counsel further announced the intent to end existing Advice efforts to extend Purple Communications to other forms of an employer’s electronic communications, including voicemail and instant messaging.

The new General Counsel’s “hit list” also sets its sights on the NLRB’s often maligned 2015 ruling finding joint employer status where one employer has – at most – only indirect or potential control over the working conditions of another employer’s employees.  In a like manner, the General Counsel cancelled an Obama era initiative that advanced the argument that an employer’s misclassification of employees as independent contractors was – in and of itself – a violation of Section 8(a)(1).  Similarly, the General Counsel would like to reduce the scope of the always lurking Weingarten rule, rather than further expand it as the predecessor Board sought to do.  And the General Counsel would like the new Board to reverse the 2015 ruling protecting an employee’s social media postings even where the postings violated EEO principles.

Employers should not expect these and the many other targets announced by the General Counsel to create immediate or automatic changes to existing law, as the Board does not use rule-making to change NLRA law.  To the contrary, the NLRB has to await an appropriate case to come before it to procedurally make changes to existing law.  Should those appropriate cases come to this Board, however, General Counsel Robb has made it plain his office will be ready and able to offer the proper analysis to make those changes a reality.

This e-blast was written by Julia Turner Baumhart, who is a member of the Detroit SHRM Legal Affairs Committee.  Ms. Baumhart is a partner in the labor and employment firm of Kienbaum Opperwall Hardy & Pelton, P.L.C. in Birmingham, Michigan and can be contacted at jbaumhart@kohp.com or (248) 645-0000. 

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article.  December 2017.