ILMA Compoundings - March 2021 - 27

WASHINGTON LANDSCAPE

NLRB Pendulum Swings
Toward Labor
By Matthew Levetown

O

n his first day in office, the
National Labor Relations
Board's (NLRB) acting
general counsel rescinded 10 guidance
memoranda, the most surprising
of which was revocation of Memo
18-04. Memo 18-04 interpreted the
NLRB's employee handbook rule
categorization in Boeing by giving
employers clear examples of rules that
employers could include in their handbooks, broken into three categories
of lawfulness. Employers will need
to reexamine their employee handbooks, checking for NLRB decisions
supporting the lawfulness of specific
rules added based on Memo 18-04,
and watch for subsequent, and likely
inevitable, challenges during the Biden
administration.
As a refresher: The NLRB acts as
a quasi-appellate board for administrative law judges on cases involving
the National Labor Relations Act,
which protects concerted activities
by workers and unions. During the
Obama administration and prior to
the NLRB's decision in Boeing, most
of the rules categorized as presumptively lawful in Memo 18-04 were
considered to be unlawful restraints on
employee collective action, or at least
faced scrutiny on a case-by-case basis.
Boeing and Memo 18-04 made it
easier for employers to judge what types
of handbook rules can presumptively
always be included, those that can't be
included and those justifying a caseby-case investigation. By rescinding
Memo 18-04, Boeing and its progeny
remain in place, including the NLRB's
categorization analysis, but employers

do not have easy access to an interpretive guide upon which they can rely. It
is important to know that just because
a rule may be lawful, discriminatory
application never is - such as only
punishing workers engaged in union
activities for uncivil language.
BOEING CATEGORIZATION
The first category of rules set forth in
Memo 18-04 were those considered
to be generally lawful, warranting
dismissal of employee charges when
brought before the NLRB's regional
offices. These can be broken into two
categories - professionalism and
business rules. Professionalism rules
include prohibitions on socially unacceptable, insubordinate or disruptive
behavior. Business rules protect the
employer by allowing handbook
rules against photos or recordings,
discussion of confidential information,
and defamation or misrepresentation
of a company. Subsequent decisions
support the legality of some rules,
such as those prohibiting disparagement of fellow employees. If and until
Boeing is overturned, employers may
justify the inclusion of a rule, even if
challenged, so long as the justifications
for the inclusion outweigh the claimed
adverse impact of the rule.
The second category required caseby-case evaluation using the standard
set out in Boeing. Most of the specifically identified rules will probably face
a challenge, given that they were a grey
area in Memo 18-04, and generally
concern speech that could arise under
union activity. Specifically identified
were rules regulating employee use of
an employer's name, speaking to the

media about an employer, criticizing the employer rather than other
employees and conflict-of-interest
rules that do not restrict union membership. Post-Boeing decisions on the
second category are usually specific to
the text and application of the handbook rule. These rules are probably
acceptable to include if and until the
NLRB issues a broad contrary ruling.
The third category covered rules
considered unlawful and those that will
continue to remain unlawful with the
rescission of Memo 18-04. The rules
identified in the memo as unlawful are
prohibitions on joining outside organizations, voting on matters concerning
an employer and preventing employee
communication about salary, benefits
or employee contracts. These rules
directly implicate worker rights under
the purview of the NLRB and have a
longer history of being held unlawful.
PRO-UNION SHIFT
On his first day in office, President
Joe Biden demanded the resignation
or termination of the general counsel
of the NLRB, whose term would
have ended in November 2021. After
firing the general counsel, which has
never been done, the assistant general
counsel was terminated after she
assumed the role the next day. With
a Republican board seat opening in
August 2021, Biden's actions reflect
a fast and furious transition toward
pro-union decisions, likely to avoid
a possible GOP Senate shift in 2022,
which could prevent the appointment
of strong pro-union NLRB members.
By eliminating Memo 18-04, the acting
Continued on page 29

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