National Labor Relations Board General Counsel Peter Robb issued a June 6 memorandum outlining his views on the legality or illegality of handbook rules in light of recent Trump NLRB decisions.  That guidance, which can be found here, gives an overview of Robb’s interpretation of the law.

Robb’s guidance represents a radical shift away from the Obama NLRB’s aggressive challenge to common workplace rules.  While one might say that memorandum represents “one lawyer’s opinion,” in truth the memorandum gives a roadmap for employers for drafting work rules and policies.  As head of the prosecuting arm of the NLRB, Robb decides which rules to challenge and which to leave uncontested.  The “Gate-Keeper” function will set the NLRB’s tone for the remainder of his term – Robb can serve until his term expires in 2021 and is subject to reappointment should President Trump or another Republican win the 2020 general election.

Robb’s predecessor, Obama-Appointed General Counsel Robert Griffin, had issued his own interpretive guidance in 2015.   The different approaches taken by the two very different agency prosecutors are striking.

For example, while Griffin’s 2015 memorandum declared unlawful rules requiring employees to be “respectful to the company, other employees, customers, partners and competitors,” Robb’s 2018 memorandum makes clear that employees can be punished for violating rules prohibiting ”rude,” “discourteous,” or “unbusinesslike” behavior.   Similarly, Griffin’s approach found unlawful rules prohibiting employees from making “fraudulent,” defamatory,” or “otherwise inappropriate” statements to co-workers, while Robb’s approach holds such requirements to be lawful and appropriate.

Robb properly cautions, however, that so-called neutral rules adopted or used to suppress the exercise of protected rights by employees would still be held to be unlawful.

For at least the next few years manufacturers will have the opportunity to adopt clear rules and policies to govern worker conduct.  Manufacturers may wish to review with their in house or outside counsel the implications of this important development.

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