Once President Trump’s appointees gained a majority of National Labor Relations Board seats this summer, it was only a matter of time before the board began addressing the aggressive pro-employee positions taken by its predecessor. Two weeks ago, new NLRB General Counsel Peter Robb issued a memorandum indicating his intent to change or at least revisit a number of these decisions and enforcement positions. For non-unionized employers, the GC indicated that his office will no longer pursue cases that attempt to declare standard employee handbook provisions as conflicting with employee concerted activity rights absent evidence of intent by the employer to do so.
Also, the GC will not seek to extend the NLRB’s Purple Communications decision. This case requires employers to provide employees with access to the company’s email for concerted activity or organizing purposes. The previous GC had indicated his intent to seek to expand this decision to other communications systems such as telephones, text messaging systems, etc. For both this and the handbook issue, the GC indicated that the NLRB should be interested in reconsidering the basis for the original decisions.
The memorandum contains similar intent to revisit NLRB decisions protecting highly vulgar or racist employee behavior during organizing campaigns, as well as the broad standard for determination of joint employment based on control over another company’s employees. The GC does not have the authority to unilaterally overturn prior NLRB opinions, but his choices with regard to cases backed by the NLRB’s enforcement staff will have a major impact on future decisions. This memorandum clearly indicates an intent by the new board majority to revisit and possibly reverse the expansive reading of employee labor rights put in place by the prior administration.