The following was written collectively by our Labor & Employment Department.
A. The “New” National Labor Relations Board Decisions and Memos
As of this past fall, following confirmation of Marvin Kaplan and William Emanuel as new members of the National Labor Relations Board (“NLRB”), that agency has obtained a 3-2 Republican majority for the first time in almost a decade. As expected, in the few short months thereafter, the Trump era NLRB has been on a path to reverse many of the decisions and actions taken by the Obama era NLRB. Here are the more significant NLRB decisions that fall in this category. Notably all were decided this past December.
1. NLRB Establishes New Standard Governing Workplace Policies
On December 14, 2017, in The Boeing Co., 365 NLRB No. 156, the NLRB overturned its standard for evaluating the legality of employee handbook policies. The standard that was overruled was established in Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004). In Lutheran Heritage, the NLRB stated that a policy is illegal if employees could “reasonably construe” it to bar them from exercising their rights to engage in union or other concerted activities under the NLRA. In the Boeing case, the administrative law judge applied the Lutheran Heritage rule to Boeing’s workplace policy restricting workers’ use of camera-enabled devices and similar recording devices such as cellphones on company property violated the NLRA. Although Boeing’s “no-recording” policy would have violated the NLRA under Lutheran Heritage, the NLRB in Boeing stated that Lutheran Heritage’s “reasonably construe” standard entails a “single-minded consideration of NLRA-protected rights, without taking into account any legitimate justifications associated with policies, rules and handbook provisions.” (more…)