Biden Board vs. Trump Board: Here We Go Again! (First Installment)
Like the return of swallows to Capistrano, the change in the White House from Republican to Democrat – or vice versa – predictably alters the majority of Members constituting the National Labor Relations Board.
This change in Board majority – which could occur this year as soon as August – invariably leads to the overturning of the prior Board’s more controversial decisions, often as frequently as once per week in fervid times. This periodic overturning results in what one commentator long-ago deplored as NLRB “policy oscillation.” Prof. Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 Admin. L. Rev. 163, 163-164 (ABA, Spring 1985). Nothing has changed in the ensuing years.
We have prepared analyses of 14 decisions of the Trump Board majority that the soon-to-be Biden Board likely will seek to overrule in a rush to return to the more pro-union stance of the former Obama Board majority. These cases will be set forth in six installments to be issued over the next six weeks.
This First installment addresses Handbook Rules and Policies; and, Use of Company E-mail and Business Systems.
The Second installment, which you can expect next week, addresses three decisions involving union and off-duty employees’ Access to Employer-Owner’s property. The Third addresses Joint Employer Rulemaking; and Independent Contractor and Employee Status. The Fourth addresses “Contract Coverage” vs. “Clear and Unmistakable Waiver”; Contractual Past Practices Survive CBA Expiration; and Intermittent Strikes as Unprotected Activity. The Fifth addresses Post-Certification Bargaining of Discharges and Suspensions; and Employment Arbitration May Lawfully Preclude Collective Claims. The Sixth addresses Micro-Units and Unit Scope; and Withdrawal of Recognition and Re-establishment of Union Majority.
A. HANDBOOK RULES AND POLICIES.
In The Boeing Company, the Trump NLRB relaxed the standard for determining whether an employer rule or handbook policy unlawfully impairs the rights of employees to engage in union or protected concerted activities. 365 NLRB No. 154, slip op. at 12–14 (Dec. 24, 2017). There, the Trump Board set forth a balancing test which evaluates: (1) the nature and extent of the rule’s potential impact on National Labor Relations Act (“NLRA”) rights, and (2) legitimate business justifications offered by the employer to support the rule. Id. at 12.
The Obama Board had ruled that facially neutral work rules, policies, and handbook provisions – those that do not reference or restrict employees’ rights to engage in union or protected concerted activities – are unlawful if employees could “reasonably construe” the rule or policy to prevent the exercise of NLRA rights. Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–47 (2004). Notably, the Obama Board used the Lutheran Heritage decision to strike down neutral employer rules that prohibited comments on social media disparaging the employer. See, e.g., Chipotle Services LLC, 364 NLRB No. 72, slip op. at 1 n.3 (2016).
A return by the Biden Board to the standard in Lutheran Heritage would outlaw otherwise neutral work rules notwithstanding the employer’s legitimate business justification for the rule or policy.
B. USE OF COMPANY E-MAIL AND BUSINESS SYSTEMS.
The Trump NLRB, in Caesar’s Entertainment, determined that an employer may prohibit the non-business use of its information technology systems, such as e-mail, Slack, or other channels of communication, including for solicitation of support for a union, as long as it is done in a non-discriminatory manner (i.e., the policy prohibits all non-business use, and not just union-related use, and is applied consistently and even-handedly), unless – in the rare case – the employees have no other means of communication among themselves. 368 NLRB No. 143, slip op. at 36–37 (Dec. 16, 2019).
Caesar’s Entertainment overruled the Obama Board’s decision in Purple Communications, Inc., which had held that employees had the NLRA-protected right to use the employer’s e-mail, during non-work time, for concerted protected activity, such as union organizing. 361 NLRB 1050, 1050 (2014).
It is likely that the Biden Board will return to the Purple Communications rule that bars employers from interfering with employees’ use of company e-mail to promote union organizing.
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