Federal Court Reins in NLRB Restrictions on Workplace Conduct Standards as Trump Administration Takes Another Step Toward Republican Board Majority

July 07, 2017

President Trump has nominated Littler Mendelson labor lawyer William Emanuel to the NLRB, a move which will give Republicans a Board majority for the first time in nine years once both he and Marvin Kaplan are confirmed by the Senate.  Mr. Emanuel brings strong credentials to the Board as a management-side practitioner with extensive experience under the NLRA and with the NLRB.  The General Counsel position is the last spot lacking a presidential nomination, as the current General Counsel, Richard Griffin, is expected to remain in place until his term expires in November.  Meanwhile, a controversial decision by the Obama Board was corrected by the Eighth Circuit, overturning a Board decision that a leaflet suggesting a link between a restaurant’s sick leave policies and customer safety was legally protected.  Eight appeals court judges agreed that the NLRB's decision "fundamentally misconstrued" the law by holding that no act of employee criticism of an employer could be considered outside the protection of the NLRA unless it was "maliciously motivated to harm the employer," and that the Board did not adequately consider the "devastating" effects of making accusations that were false and "calculated."  The decision by the NLRB in a case involving a Jimmy John's franchise was one among many by the NLRB in recent years tying the hands of employers in protecting their brands and ensuring civility in the workplace.