June 25, 2019

June 24, 2019

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Some Employers Will Have Workplace Rules Re-Evaluated By NLRB

The National Labor Relations Board is affording dozens of employers the chance to have cases involving the legality of their workplace rules re-evaluated under a 2017 Board decision. The Board decision overruled Obama-era Board precedent that hampered employers’ ability to maintain workplace conduct rules without running afoul of the National Labor Relations Act. The Board’s new initiative, first reported by Bloomberg Law, involves remanding numerous cases that held against employers for reconsideration by NLRB administrative law judges.

Workplace rules have been a contentious issue under federal labor law for years. In 2004, the NLRB issued its controversial decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which set a tough standard to determine whether workplace rules, policies, and handbook provisions unlawfully interfere with rights of employees protected by the Act. In Lutheran Heritage, the Board held that a neutrally worded rule would violate the NLRA if employees may “reasonably construe” the rule to prohibit an employee’s exercise of his or her protected rights. Lutheran Heritage made it considerably harder for employers to maintain otherwise benign-sounding handbook provisions prohibiting rude or disruptive workplace behavior.

In 2017, after the composition of the Board shifted to a Republican majority, the NLRB issued Boeing Co., 365 NLRB 154 (2017). In Boeing, which overruled Lutheran Heritage, the Board held that determining whether an employer rule is unlawful involves a balancing test that measures the rule’s impact on employee rights against an employer’s legitimate business interests in maintaining the rule. The Board created a three-tiered rules classification system: “Category 1” rules are those the Board has specifically designated as lawful; “Category 2” rules are those that require individualized scrutiny to determine their legality; and “Category 3” rules are those specifically designated by the Board as unlawful.

On June 8, 2018, the NLRB’s General Counsel, Peter Robb, issued a memo providing specific examples of which rules would fall into each of these categories. For example, the General Counsel’s memo identified as a Category 1 rule one that prohibited “behavior that is rude, condescending or otherwise socially unacceptable.”

The Board’s latest action remands at least 40 workplace rules cases for a fresh look under Boeing. Any new decisions will strengthen Boeing as precedent. Moreover, the new decisions certainly will provide employers clear examples of what employee conduct they can and cannot prohibit or limit through workplace rules.

Jackson Lewis P.C. © 2019

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About this Author

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...

617-367-0025
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-in-force, purchase/sale transactions, sexual harassment and other workplace conduct rules, compliance with the Americans With Disabilities Act, wrongful discharge and other workplace litigation, corporate campaigns and union organizing matters, collective bargaining, arbitration and National Labor Relations Board proceedings. He has been quoted by the press on many labor matters, including the National Labor Relations Board’s recent initiatives on protected concerted activity and the proposed Notice Posting requirements.

Mr. Rosen has extensive experience advising clients developing integrated corporate-wide labor relations strategies - whether the organization is union-free, partially unionized or entirely unionized. He has led teams conducting multi-facility labor-related legal assessments where clients are seeking to develop creative, strategic legal approaches which anticipate major issues and achieve a company’s labor relations goals. Mr. Rosen also has advised clients being confronted with corporate campaigns and requests for neutrality agreements. He has represented organizations seeking to maximize management rights through their development of pro-active employee relations approaches to remain union-free. He also has advised unionized organizations on lawful negotiating strategies – in situations ranging from “hard bargaining” to recapture management rights to more “cooperative” negotiations – in all cases, providing legal advice designed to assist clients in achieving their primary goals.

212-545-4000