November 21, 2019

November 20, 2019

Subscribe to Latest Legal News and Analysis

November 19, 2019

Subscribe to Latest Legal News and Analysis

November 18, 2019

Subscribe to Latest Legal News and Analysis

NLRB Member Criticizes Board’s Handbook Rule Review Standard

The legality of employer work rules continues to draw National Labor Relations Board scrutiny on a regular basis.

A 2-1 Board panel majority (Members Kent Hirozawa and Lauren McFerran) has found that a hospital’s rules prohibiting employee conduct that “impedes harmonious interactions and relationships” and “negative or disparaging comments about the professional capabilities of employees or physicians” violate the National Labor Relations Act. William Beaumont Hospital, 363 NLRB No. 162 (Apr. 13, 2016).

The Board’s standard for judging these rules also continues to be a source of consternation among employers and others, including Board Member Philip Miscimarra. In William Beaumont Hospital, Miscimarra called for the Board to abandon its existing analysis, announced in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), that renders policies unlawful “whenever an employee ‘would reasonably construe the language to prohibit Section 7 activity.’” He further contended that if the Board does not change that standard, it should be repudiated by the courts.

Miscimarra noted that the Board’s current analysis ignores an employer’s justification for various work rules that are designed to promote its legitimate interests in order, discipline, and business operations  –  justification that courts and prior Boards had recognized for decades .  He called for the Board to “resume doing what the Supreme Court has repeatedly required, which is to carry out its ‘duty to strike the proper balance between … asserted business justifications and the invasions of employee rights in light of the Act and its policy.’” Miscimarra also noted that the Board’s departures from the Supreme Court’s requirement have given rise to uncertainty and legal disputes. In his view, the Board has its “thumb on the scale” in favor of employee rights and its present test “imposes a form of blindness on the Board,” ignoring the consequences of its decisions.

Although the Board decisions generally are accorded deference by reviewing courts, Miscimarra noted that as long as fifteen years ago, the U.S. Court of Appeals for the D.C. Circuit strongly criticized the Board for its failure to consider reasons for employer policies: “We cannot help but note that the NLRB is remarkably indifferent to the concerns and sensitivity which prompt many employers to adopt the sort of rule at issue here [prohibiting ‘abusive and threatening language’]. … To bar, or severely limit, an employer’s ability to insulate itself from such liability is to place it in a ‘catch 22.’” Miscimarra also quoted the D.C. Circuit as saying, “Yet the Board’s position that the imposition of a broad prophylactic rule against abusive and threatening language is unlawful on its face is simply preposterous. It defies explanation that a law enacted to facilitate collective bargaining and protect employees’ right to organize prohibits employers from seeking to maintain civility in the workplace.” [Quoting Adtranz ABB Daimler-Benz Transportation v. NLRB, 253 F.3d 19, 27-28 (D.C. Cir. 2001).]

As convincing as Miscimarra’s arguments are, the Board’s views on employer policies may not change until the composition of the Board changes, which is likely to depend on the outcome of the Presidential election. The Board currently has four members, three Democratics and one Republican. Although he has been renominated by President Obama, Hirozawa’s term ends in August of this year and the Senate may not act on his renomination by the end of Obama’s presidency.

Jackson Lewis P.C. © 2019


About this Author

Suellen Oswald, Jackson Lewis, Labor Arbitration Lawyer, Automotive Unions Attorney

Suellen Oswald is a Principal in the Cleveland, Ohio office of Jackson Lewis P.C.

With more than 25 years of experience in labor and employment law and a nationwide practice, Ms. Oswald is an experienced, trusted labor negotiator who has worked with international conglomerates, as well as Fortune 100 companies and medium and small businesses. She has successfully led hundreds of labor negotiations, union organizing campaigns and litigated unfair labor practice charges, labor arbitrations and dozens of cases through...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification campaigns. He also represents clients at the National Labor Relations Board in connection with bargaining unit issues, objections and challenges, as well as unfair labor practice investigations and trials. Mr. Bloom also has been the spokesperson at countless first and successor contract collective bargaining negotiations, and regularly advises on collective bargaining agreement administration issues, including grievance/arbitration issues.

Mr. Bloom has appeared before the Massachusetts Supreme Judicial Court, the U.S. Court of Appeals for the District of Columbia, several U.S. District Courts, the National Labor Relations Board, the Massachusetts Labor Relations Commission, the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...