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National Labor Relations Board to revamp ethics, recusal policies

Posted On: Jun. 8, 2018 2:00 PM CST

National Labor Relations Board to revamp ethics, recusal policies

The National Labor Relations Board will undertake a “comprehensive review” of its policies and procedures governing ethics and recusal requirements for its board members, the agency said Friday.

Separately, on Wednesday, the NRLB’s general counsel issued a memo that provides new guidance on employer handbook policies and states that ambiguities should no longer be interpreted against the employer.

The ethics and recusal issue arose recently in connection with the issue of joint employment

In December, the NLRB overturned the 2015 ruling on a 3-2 vote in a case involving Muscatine, Iowa-based Hy-Brand Industrial Controls Ltd. and Milan, Illinois-based Brand Construction Co. and returned to the pre-Browning-Ferris standard. 

But after an objection was raised against Republican NLRB member William J. Emanuel’s participation in the vote because of a perceived possible conflict of interest, three NLRB board members issued an order vacating the ruling, which in effect restored the Browning-Ferris ruling.

“Recent events have raised questions about when Board Members are to be recused from particular cases and the appropriate process for securing such recusals,” NLRB Chairman John F. Ring said in his Friday statement. “We are going to look at how recusal determinations are made to ensure not only that we uphold the Board’s strong ethical culture, but also to ensure each Board Member’s right to participate in cases is protected in the future. Those who rely on us to decide labor matters need to know their cases will be decided under proper procedures that ensure an appropriate Board majority.”

In Wednesday’s memo, NLRB General Counsel Peter B. Robb referred to the board’s Boeing ruling in December, in which the agency overturned a 2004 decision and held that Chicago-based Boeing Co. had lawfully maintained a no-camera rule in its employee handbook that prohibited employees from using camera-enabled devices to capture images or video “without a valid business need and an approved camera permit.” 

Mr. Robb said in the memo that he is providing general guidance for NLRB regions under that ruling and regarding the “interests, business justifications and other considerations that Regions should take into account” under Section 7 of the National Labor Relations Act, which gives employees the right to engage in concerted activities for mutual aid or protection.

It said that in its Boeing ruling, not only did the board add a balancing test, “but it also significantly altered its jurisprudence on the reasonable interpretation of handbook rules.”

It said regions “should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.”

The 20-page guidance covers nine categories: rules that are generally lawful to maintain; no-photography rules and no-recording rules; rules against insubordination, non-cooperation or on-the-job conduct that adversely affects operations; rules protecting confidential, proprietary and customer information on documents; rules against defamation or misrepresentation; rules against using employer logos or intellectual property; rules requiring authorization to speak for company; and rules banning disloyalty, nepotism or self-enrichment.