March 23, 2018

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Trump Board Overrules Workplace Rules Analysis

In a stunning development, the National Labor Relations Board has decided that when determining the legality of a facially neutral rule under the National Labor Relations Act, it will consider (i) the nature and extent of the potential impact on rights protected by the Act, and (ii) legitimate justifications associated with the rule.

By a vote of 3-2, the Board overturned Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), under which many seemingly innocuous workplace rules were found illegal. Under the Lutheran Heritage standard, employer rules violated the NLRA if the rules could be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.

In addition, the Board established three categories of rules to provide greater clarity and certainty to employees, employers, and unions.

The first category will include rules the Board designates as lawful to maintain.

The second will include rules the Board designates as requiring individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, but nonetheless lawful to maintain because any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

The third will include rules the Board designates as unlawful to maintain because they would prohibit or limit NLRA-protected conduct and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.

The Board also expressly overruled decisions finding that it violates the Act to maintain rules requiring employees to foster “harmonious interac­tions and relationships” or to maintain basic standards of civility in the workplace.

Jackson Lewis P.C. © 2018


About this Author

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...

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-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.