Marc BlochSeptember 13, 2021 

All new presidential administrations lay out their agenda for prospective action for each respective executive agency.  On August 12, 2021, the General Counsel for the National Labor Relations Board (Board or NLRB), Jennifer Abruzzo, issued a seven-page memorandum titled, “Mandatory Submission to Advice.”  The “Advice” section of the General Counsel’s  staff is essentially charged with advancing the purpose and policy of the National Labor Relations Act (Act) as determined by whomever is sitting in the White House. Consequently, under the Biden administration, following a Republican administration, the General Counsel will be looking to reinvigorate principles articulated in the prior Democratic administration and/or “correct” the misguided direction of the Trump Board’s decisions.

The purpose of this article is to highlight two areas— the use of company email and handbooks for union organizing—that the General Counsel is seeking to revisit and in all probability revert back to Obama Board precedents. I hope, over time, to touch on many of the less esoteric subjects the General Counsel has indicated that need to be addressed that are relevant in day-to-day employee relations.

Company email

The Act has an inherent conflict between certain articulated employee rights (found in Section 7 of the Act) and employer property rights. However, historically, workplace restrictions on employee union-related conversations during non-work time was presumptively unlawful to avoid creating an “unreasonable impediment to the exercise of the right to self-organization.”  In 2014, the Obama Board found that the use of a company’s email system for internal communications should be permitted for the purpose of non-working time, union-related communications. This reversed a 2007 Bush Board decision that an employer has a right to control its communications systems (unless there is no other way to communicate to employees). In 2019, the Trump Board reverted to the prior Bush Board’s standard when it overturned the Obama Board’s decision.  Consequently, the current rule is that absent extraordinary reasons, employees may not use company email for union-related communications.

The new General Counsel has since instructed the regional offices to submit cases related to “employee’s use of other electronic platforms in the workplace…or other employer communication systems” to Advice for determination if such restrictions are a violation of employee rights to self-organize.

Handbooks

An employee relations cynic might wonder if employees ever read the company handbooks that they receive (and subsequent updates) when they join the company. Nevertheless, the Obama Board scrutinized employee handbook language and in some instances found that certain clauses or phrases “interfered” with employee rights (Section 7) and violated the Act. For years the Board has wrestled with a standard of the “reasonable employee” and what that employee would construe from reading certain company pronouncements, such as those contained in a company handbook. While not seeking to take a political position, it appears that the Democratic Board reads these documents with greater scrutiny than do their Republican counterparts. For instance, the Obama Board, determined that a “no camera rule,” while facially neutral, constituted unlawful interference with certain employee rights under the Act. This finding followed a line of cases that found that other facially neutral handbook rules were also determined to be violative of the Act.

In 2004, the Bush Board found that handbook rules were to be measured by a three-part test: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule had been applied in such a manner as to restrict Section 7 rights.

In 2017, the Trump Board in Boeing determined that the Company’s maintenance of a “no camera rule” was not a violation of the Act reversing the prior Obama Board.  The Trump Board found that the application of the 2004 decision by the Obama Board had led to absurd findings of violations of the Act in cases where rules requested employees to “work harmoniously” or conduct themselves in a “positive and professional manner.” Consequently, the Trump Board revised the 2004 standard by stating that handbook provisions would be evaluated by the Board looking at two things: “(i) the nature and extent of the potential impact on NLRA rights; and (ii) the legitimate justifications associated with the rule.”

The current General Counsel has indicated through its August memo that it is “determining the overall legality of workplace/employee handbook rules.  This includes, but is not limited to…applicability of Boeing (decision above) to confidentiality rules, non-disparagement rules, social media rules, media communication rules, civility rules, respectful and professional manner rules, offensive language rules and no camera rules.” Additionally, the memo also revealed such work rules will be reviewed from the “perspective of the “objectively reasonable employee” who is aware of his legal rights and also interprets work rules as they apply to the ‘everydayness’ of his job.”

It appears that when given the opportunity, the Biden Board will be reverting back the Obama Board’s more scrutinized handbook standard.

Marc J. Bloch is a partner in the Labor and Employment Services Group of the Ohio-based law firm of Walter | Haverfield LLP.