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NLRB Swings Right

on Thursday, 21 December 2017 in Labor & Employment Law Update: Sarah M. Huyck, Editor

For many years we’ve been cautioning employers about unprecedented National Labor Relations Board scrutiny, and intrusion, into what used to be universally accepted employment policies. For example, in the good ole days, employers quite rightly believed that prohibiting “loud, abusive, or foul language” made perfect sense. The NLRB recently disagreed, finding that employees “would reasonably construe” that general prohibition to prohibit workplace protests. That’s just one example.

The NLRB’s recent “enlightened” approach to employment policy analysis also found unlawful rules:

  • prohibiting “false, vicious, profane or malicious statements toward or concerning the…[employer] or any of its employees;”
  • subjecting employees to discipline for “inability or unwillingness to work harmoniously with other employees;”
  • prohibiting “[a]ny type of negative energy or attitudes;” and
  • prohibiting “[n]egative conversations about associates and/or managers”

How could this happen? The NLRB simply changed its analysis distinguishing between lawful and unlawful employment policies. Basically, the Board began to render unlawful any policy that might “chill” employee rights. Not coincidentally, this shift occurred after the NLRB’s politically appointed majority changed under the previous administration. Board members are nominated by the President, and confirmed by the Senate.

Last week, things began to change at the NLRB in a very significant way. We obviously now have a new occupant in the White House. President Trump’s nominees have already resulted in two new Board members. The two new members change the balance of power at the NLRB. This new majority issued a game changing decision on December 14, 2017. The Boeing Company and Society of Professional Engineering Employees in Aerospace, Cases 19-CA-090932, 19-CA-090948, and 19-CA-095926. The Boeing decision overrules the “reasonably construe” standard the Board has recently used to upend a great many employer policies.

No longer will the Board find unlawful the mere maintenance of a facially neutral policy based solely on whether employees “would reasonably construe” the rule to inhibit their protected activity. According to the new Board majority, the now overturned precedent “produced rampant confusion for employers, employees and unions.” That’s a fact, and a sad commentary.

The new Boeing standard will be applied retroactively “to all pending cases in whatever stage,” and requires the Board, when evaluating employment policies, to consider:

  1. The nature and extent of the potential impact on employee rights, and
  2. The legitimate employer justifications associated with the rule.

Significantly, when undertaking its analysis, the Board will “strike the proper balance between… asserted business justifications and the invasion of employee rights…”

Make no mistake about it. This seismic shift will allow employers much greater flexibility in publishing, maintaining and enforcing reasonable work rules. No longer will the rules be viewed exclusively from the employee perspective. Employers’ legitimate interests will now prevail in many cases where they were previously ignored, or given little deference.

One word of caution in this otherwise very positive development. Even lawful rules will remain legally problematic when published in response to union organizing activity, or when enforced to punish conduct which is protected under the National Labor Relations Act. For example, as has always been the case, employers cannot terminate employees who walk off the job to protest unsafe working conditions, even when the employer cites a facially neutral policy prohibiting job abandonment to justify its decision.

With that limited caution, this is clearly a development for employers to celebrate. It’s nice to know that commonsense still sometimes prevails. Expect more of the same under the new Board majority. As always, we will keep you posted.

Mark McQueen

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