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NLRB Members Lean Toward Possible Easing of Restrictions on Off-Duty Employee Access Rules

Two of the four members of the National Labor Relations Board (NLRB) have indicated they are willing to rethink a key element of the Board’s more-than-40-year-old precedent regarding employers’ off-duty employee access rules under the National Labor Relations Act (NLRA). Southern Bakeries, 368 NLRB No. 59 (Aug. 28, 2019).

Members William Emanuel and Marvin Kaplan, both nominated by President Donald Trump, wrote in a footnote in Southern Bakeries that they were prepared to “reconsider … in a future appropriate case” the “third prong” of the test in Tri-County Medical Center, 222 NLRB 1089 (1976), for determining the validity of employer off-duty employees access rules.

Tri-County

Under Tri-County, an employer’s rule prohibiting access by off-duty employees is valid only if three conditions are met: “it (1) limits access solely with respect to the interior of the plant and other working areas; (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access to the plant for any purpose and not just to those employees engaging in union activity.” . The third prong of the test has proven to be vexing for employers because it does not even permit an employer to maintain a rule that allows an employee to return to the workplace for innocuous reasons, such as to pick up a paycheck.

NLRB General Counsel Memo

Among other responsibilities, the NLRB hears appeals of decisions made by administrative law judges in unfair labor practices cases. In connection with their desire to review the Tri-County test, Members Emanuel and Kaplan will find a willing ally in NLRB General Counsel Peter Robb. The General Counsel decides which unfair labor practice charges to prosecute and, therefore, to shepherd through the NLRB processes to the Board. In a memorandum issued on December 1, 2017, Robb listed the types of cases he would like to present to the Board with the goal of convincing the NLRB to reverse or modify current law (“to present [to the Board] an alternative analysis” to the existing one). NLRB Memorandum GC 18-02 (“Mandatory Submissions to Advice”). Among them were cases arising under Tri-County.

Jackson Lewis P.C. © 2019

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Patrick Egan, Labor Law Attorney, Jackson Lewis, Boston Law Firm
Patrick L. Egan

Patrick L. Egan is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. Mr. Egan works in traditional labor law.

He has assisted employers in all industries in all phases of union organizing campaigns. Mr. Egan has represented employers in card-signing efforts and representation and decertification campaigns. He has conducted union awareness and positive employee relations training for hundreds of companies and employer groups. He has also assisted dozens of employers to preempt, prepare for and defend against union corporate campaigning....

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

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.

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

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-...

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