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Top Five Labor Law Developments for October 2019

  1. The National Labor Relations Board (NLRB) has clarified its standard for evaluating the legality of employers’ facially neutral policies, rules, or handbook provisions. LA Specialty Produce Co., 368 NLRB No. 93 (Oct. 8, 2019). Overturning the Obama-NLRB standard, the NLRB in Boeing Co. provided a roadmap for how it will analyze the legality of employer work rules and policies. As it reviews them, the NLRB will place rules in one of three categories. Rules in Category 1 are lawful to maintain. Rules in Category 2 require individualized scrutiny. Rules in Category 3 are unlawful. As the NLRB determines in its decisions the category placement of various types of rules, employers will come to know how their similar rules may fare were the NLRB to review them. The NLRB in LA Specialty Produce clarified that, under the Boeing framework, the NLRB’s General Counsel (GC) has the burden of proving a facially neutral rule, reasonably interpreted by an objectively reasonable employee, may interfere with the exercise of rights under the National Labor Relations Act (NLRA). If the GC fails, the NLRB’s inquiry ends, and the rule is considered lawful (Category 1(a)). If the GC meets his burden, the NLRB must balance the nature and extent of the rule’s impact on Section 7 rights against the employer’s legitimate justification(s) for the rule. If it determines the justification(s) outweigh the impact on Section 7 rights, the rule is lawful (Category 1(b)). If it finds the justification(s) do not outweigh the impact on Section 7 rights, the rule is unlawful (Category 3). If it is not possible to draw any broad conclusions about the legality of a particular rule, the rule will require individualized scrutiny (Category 2). For more on this decision, see our article, Labor Board Clarifies Boeing Work Rules Decision, Finds Confidentiality, Media Contact Rules Lawful.


  2. The NLRB found that a “wildcat” strike was not protected by the NLRA once the striking employees became aware the union disapproved of and disavowed the strike. CC1 Limited Partnership d/b/a Coca Cola Puerto Rico Bottlers, 368 NLRB No. 84 (Sept. 30, 2019, released in Oct.). After the company terminated two shop stewards, they led employees in a wildcat strike -- a strike not authorized by union leadership. The company suspended or fired some strikers who continued the work stoppage even after being informed that the union disavowed the strike as unauthorized. In a 2015 decision, the NLRB found the strike was protected by the NLRA and the discipline against strikers was unlawful. On appeal, the U.S. Court of Appeals for the D.C. Circuit remanded the case to the NLRB for further explanation of its conclusion that the wildcat strike was protected activity. On remand, the NLRB reversed its 2015 decision and found the wildcat strike was not protected once the striking employees became aware that their union disapproved of and disavowed the strike. The unauthorized strike, the NLRB found, interfered with the union’s ability to act as the exclusive bargaining representative for the employees. For more on this decision, see our post, NLRB: Wildcat Strike Loses NLRA Protection Following Employee Knowledge of Union Disavowal, Disapproval.


  3. The General Counsel’s Division of Advice found that an employee engaged in NLRA-protected concerted activity when discussing pay with coworkers, even though none of the colleagues voiced support for the worker’s complaints. Gallup, Inc., 14-CA-234530 (Jul. 24, 2019, released Oct. 18, 2019). An employee voiced concerns in group meetings and conversations with colleagues about the employer’s decision to reclassify employees as non-exempt under the Fair Labor Standards Act and to decrease employees’ base salary. While other employees may have shared the employee’s displeasure over the change, they apparently did not express that opposition to the employer or each other. The employer later terminated the complaining employee for “talking about [] pay to others.” The employee filed an unfair labor practice charge alleging his termination was an unlawful response to protected concerted activity. The Division of Advice found the employee’s statements to coworkers were concerted because they were made to incite group action over the pay changes, even if other employees did not voice support. The employee took steps (such as asking colleagues to speak up) to induce group support. That the employee was unsuccessful was irrelevant. The Division of Advice also distinguished the facts in this case from those in the NLRB’s decision in Alstate Maintenance, 367 NLRB No. 68 (2019). For more on that decision, see our article, Labor Board Narrows What May Be Considered Concerted Activity.


  4. NLRB Chairman John Ring has suggested that additional changes to the NLRB’s election rules may be near, as the NLRB continues to receive public comments on existing proposed election rule changes. In comments at an event for labor and employment attorneys and HR professionals, Ring stated that a broad overhaul of the Obama-NLRB “quickie” election rules is in the works, but he did not state when such changes can be expected. The 2014 rules significantly shortened the time for responding to union election petitions, among other changes. The NLRB already is considering proposed changes to its election rules, including rules governing voluntary recognition, “blocking” charges (unfair labor practice charges that block processing of union election petitions), and rules governing the formation of bargaining relationships in the construction industry. The NLRB has extended the time for the public to submit comments on those existing proposed rule changes to December 10, 2019. For more on the existing proposed rule changes, see our post, NLRB Issues Proposed Rules To Modify Portions Of Its Election Procedures.


  5. The NLRB has extended the deadline for the public to respond to a proposed rule to exclude student workers at private colleges and universities from NLRA coverage. Comments must be submitted on or before December 16, 2019. In September, the NLRB issued a “Notice of Proposed Rulemaking” to establish that “students who perform any services for compensation, including, but not limited to, teaching or research, at a private college or university in connection with their studies are not ‘employees’ within the meaning of Section 2(3) of the [National Labor Relations] Act.” In other words, if the rule is adopted, unions could not petition the NLRB to represent student workers. (The proposed rule would not bar colleges and universities from voluntarily recognizing a union as the representative of student workers.) The proposed rule would “overrule extant precedent and return to the state of law as it existed from shortly after the NLRB first asserted jurisdiction over private colleges and universities in the early 1970s to 2000 and, with brief exceptions, for most of the time since then.” For more on the proposal, see our article, NLRB Proposes Rule to Exclude Student Workers at Private Colleges, Universities from NLRA Coverage.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 319


About this Author

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-...

Jonathan J. Spitz, Jackson Lewis Law Firm, Labor Employment Attorney, Atlanta

Jonathan J. Spitz is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. He is Co-Leader of the firm’s Labor and Preventive Practices Group.

Mr. Spitz lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media issues and the changing regulatory landscape. He understands the practical and operational needs of corporate America, helping design pragmatic strategies to minimize risk and maximize performance. He has represented management in dozens of counter-organizing drives and participated in countless unfair labor practice proceedings, discrimination charges and other matters before the National Labor Relations Board, the Equal Employment Opportunity Commission and other federal and state administrative agencies, as well as in collective bargaining, arbitration and in employment litigation before state and federal courts. Mr. Spitz regularly counsels employers in employee relations and discipline and discharge matters, and also assists employers in drafting employment policies and in complying with the Family and Medical Leave Act, drug testing laws and regulations, the Americans with Disabilities Act and other federal and state employment laws.

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...

Richard Greenberg, Jackson Lewis, workplace grievances lawyer, arbitrations litigation attorney

Richard Greenberg is a Principal in the New York City, New York, office of Jackson Lewis P.C. He advises both unionized and union-free clients on a full-range of labor and employee relations matters.

With respect to traditional labor matters, Mr. Greenberg represents clients in collective bargaining negotiations, labor disputes, grievances and arbitrations, proceedings before the National Labor Relations Board, and in state and federal court. Mr. Greenberg also advises clients on the legal aspects of remaining union-free....

Chad P. Richter, Jackson Lewis PC, Alternative Dispute Resolution, Attorney

Chad Richter is a Principal in the Omaha, Nebraska, office of Jackson Lewis P.C.

Mr. Richter’s practice is divided into three areas: (1) preventive counseling and training; (2) traditional labor law; and (3) workplace litigation. With regard to Mr. Richter’s preventive practice, he routinely provides day-to-day advice and counseling to management on a variety of employment law matters including human resource management, traditional labor relations, employment discrimination, wage and hour, privacy, disability leave management, and reductions in force. Mr....