As most employers are now aware, the National Labor Relations Board (NLRB, or the "Board") in recent years has adopted more restrictive, non-employer-friendly approaches to what it will permit in workplace policies. These rules have been applied to union employers and just as vigorously to unorganized employers. Management labor lawyers have been placing their clients on guard to prevent them from running afoul of the National Labor Relations Act (NLRA). Now that a new administration is in charge, employers are left wondering (and hoping) whether there will be a shift in this trend.
The answer would appear to be YES.
Cellco Partnership d/b/s Verizon Wireless Inc., is a recent example of the NLRB's heavy-handed approach in reviewing employers' policies in employee handbooks. The Board's current standard deems a handbook provision unlawful if employees "would reasonably construe" the policies as prohibiting concerted activity protected under Section 7 of the NLRA, and the Board uses no common sense in applying this standard. Consistent with this approach, the NLRB ruled, over a well-reasoned dissent, in Verizon Wireless Inc. that the employer-maintained handbook rules at issue unduly restricted employee communications and behavior and hence were unlawful.
More important than the ruling itself was the preview it provided of how a new Republican-dominated Board might reformulate the Board's precedent on handbooks and policies. In Verizon Wireless Inc., Acting Chairman Phillip Miscimarra, currently the Board's only Republican, penned a vigorous dissent opining that the Board's current standard should be scrapped because it "defies common sense." He argued that the Board should replace the existing standard with a balancing test, as he had suggested in a prior dissent. Miscimarra contended the current standard focuses too narrowly on employees' NLRA-protected rights without taking into account employers' legitimate justifications for a particular policy or rule, such as preventing workplace harassment, accidents or violence.
A facially neutral rule that does not expressly restrict protected activity, that was not adopted in response to NLRA-protected activity, and that has not been applied to restrict protected activity should, Miscimarra argued, be declared unlawful only if the employer's legitimate justifications for maintaining the rule are outweighed by the potential adverse impact on employees' protected Section 7 rights.
Miscimarra's Verizon Wireless Inc. dissent also attacked the Board's recent standard established in Purple Communications, which grants employees wide access to and use of an employer's email system, saying that the standard is "incorrect and unworkable." Miscimarra further declared that "the Board should overrule Purple Communications and reinstate [the NLRB's previous standard], which recognized the right of employers to control the use of their own property, including their email systems, provided they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines." Such a change would permit employers to limit or prohibit the use of email for certain non-work purposes.
It is expected that President Trump will appoint two additional Republicans to fill the current NLRB vacancies. Once this happens, and based on Miscimarra's dissent in Verizon Wireless Inc., we can likely expect a dramatic shift in the NLRB's stance on employee rights versus an employer's right to control its property and work environment.
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