All Handbooks On Deck

By Mark M. Trapp

shutterstock_policies and procedures (002)A little-noticed decision on Monday from the United States Court of Appeals for the D.C. Circuit illustrates the profound difference in the way the National Labor Relations Board (“Board”) under new General Counsel Peter B. Robb intends to evaluate employer rules and workplace policies versus the perhaps overzealous and less employer-friendly approach of the Obama-era Board.

On January 29, 2018, in Grill Concepts Services, Inc. v. NLRB, Case No. 16-1238, (D.C. Cir. January 29, 2018), the D.C. Circuit remanded back to the Board for reconsideration numerous rules previously found unlawful by the Board. This step was taken at the request of the Board following its decision just over six weeks ago in The Boeing Company, 365 NLRB No. 154 (December 14, 2017).

In that case, a new and brief Republican majority overruled the Board’s prior standard pursuant to which employee handbook rules were considered unlawful if employees could “reasonably construe” the rules as prohibiting the exercise of their rights protected by the National Labor Relations Act. In its place, the Boeing decision established a new standard. Going forward, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, might potentially interfere with the exercise of employees’ NLRA rights, the Board will balance two things: first, the nature and extent of the potential impact on employees’ protected rights, and second, the employer’s legitimate justifications for the rule. When an employer’s legitimate justifications outweigh a rule’s potential impact on protected rights, the rule will be found lawful.

Following its issuance of the Boeing decision, the Board requested that the D.C. Circuit remand the majority of the extant charges on appeal for reconsideration under the new standard, which the court acted on earlier this week. As shown by this remand, the Board’s new handbook standard should prove far more workable for employers, and expand on their ability to promulgate facially neutral work rules and policies consistent with legitimate business needs and justifications, so long as those policies do not unduly interfere with protected rights.

The issuance of the Boeing decision and its new standard made clear that under new General Counsel Robb, the Board does not intend to micro-manage the workplace of non-union employers, as had became much more commonplace in the last eight years.

Instead, employers can take some comfort that with the new handbook standard and new General Counsel, and soon a new Republican-majority, they can craft and issue common sense rules and policies for the effective management of their workplace, whether union or non-union, without undue scrutiny from the National Labor Relations Board.

All handbooks on deck!

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