Thanks very much to David Phippen from our Metro D.C. Office for letting me get some depositions taken this week and allowing me to republish his analysis here.
As we have previously reported, the National Labor Relations Board in recent years has put employee handbooks and policy manuals under a magnifying glass, searching for any provision that might, in its view, violate the National Labor Relations Act. Last week, apparently after hearing from labor law practitioners that guidance was needed, NLRB General Counsel Richard F. Griffin, Jr., issued a report attempting to explain several years of Board decisions and positions taken by his office. His stated goal was “to offer guidance on . . . this evolving area of labor law, with hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”
Unfortunately, because the decisions and positions have often been inconsistent, the guidance provides few bright lines for employers to follow to ensure that their rules are lawful. But, perhaps worst of all, the General Counsel’s guidance follows the current Board majority view and, at least implicitly, largely rejects a balanced interpretation of the NLRA that gives sufficient weight to employers’ interests in managing their workplaces, protecting employees, and protecting confidential information and intellectual property.
Prudent employers will have their handbooks and policies reviewed by an experienced labor lawyer who understands Section 7 and has developed a keen appreciation for the direction in which the Board and the General Counsel are moving.
All employers, especially non-union employers not used to dealing day-to-day with the NLRA, should take note and get their employee handbook rules and policies in line with the GC’s expressed views. Employers found to be in violation can be ordered to rescind any unlawful rules and rescind and remedy any disciplinary action based on the rules. An unlawful rule can also be ground for the Board to set aside an NLRB election vote against union representation and direct a re-run election, thus giving the union another chance to win.