On June 14, 2019, the National Labor Relations Board (NLRB or Board) issued an important decision clarifying whether and when an employer may lawfully exclude union organizers from its privately owned public spaces. Under then extant Board caselaw, where an employer had invited the public to enter or use space on its private property, the employer could not lawfully exclude union organizers from entering and using that same “public space” because that exclusion was considered to be unlawful discrimination in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA or Act). The Board’s decision in UPMC, 368 NLRB No. 2, rejects this generalized “public area” doctrine, redefines what is and isn’t unlawful discrimination for the purposes of determining a union’s right of access to an employer’s public spaces and, broadens employer’s legal options under the NLRA. 
Continue Reading NLRB Limits Union Access Rights to “Public Spaces” of Employers

In The Boeing Company, 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) reassessed the standard it would apply when determining the facial validity of otherwise neutral work rules based upon a balancing between a given rule’s negative impact on employee’s ability to exercise their statutory rights and the rule’s connection to an employer’s right to maintain discipline and productivity in the workplace. For the purpose of applying this new balancing standard, the Boeing Board trifurcated all work rules into one of three distinct categories. First, a Category 1 rule is a work rule that does not prohibit or interfere with the exercise of statutory rights or one whose potential impact on statutory rights is relatively slight or outweighed by the business justification associated with the rule. According to Boeing, the maintenance of such rules is to be considered lawful. Next are Category 2 rules, which are neither “obviously” lawful nor unlawful and which may adversely impact NLRA-guaranteed rights. Under Boeing, their lawfulness is to be determined on a case-by-case basis and depends upon whether the rule’s adverse impact on statutory rights is outweighed by the employer’s interest in maintaining the rule. Finally, Category 3 rules are those that on their face prohibit or limit statutory rights and whose impact on statutory rights outweigh the business justifications associated with the rule. Category 3 rules are facially invalid, rendering their mere maintenance unlawful.
Continue Reading NLRB’s Division of Advice Gives “Advice” As to the Application of Boeing — When a Work Rule/Employment Agreement is Facially Valid Under the NLRA in Union and Union Free Workplaces

On June 6, 2018, the National Labor Relations Board’s (“NLRB” or “Board”) General Counsel issued Memorandum GC 18-04 (“GC 18-04”), which provides guidance to employers on the legality of certain handbook rules following the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  By way of background, in 2004, the Board issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) if employees would “reasonably construe” the rule to prohibit protected concerted activity under Section 7 of the NLRA.  The Lutheran Heritage test gave no consideration to the employer’s stated justifications for implementing the rule, and produced arbitrary and oftentimes nonsensical Board decisions that appeared to hinge on what the then-Board majority believed an employee may think about a particular rule. In Boeing, the Board overruled the “reasonably construe” standard announced in Lutheran Heritage and issued a new test that balanced the impact a reasonably interpreted, facially neutral rule may have on employees’ Section 7 rights with the employer’s business justifications for the rule.  The Board noted that work rules will likely fall into three categories: Category 1 rules, which will include rules that the Board deems to be facially lawful; Category 2 rules, which will require individualized scrutiny to determine if the rules are lawful; and Category 3 rules, which will be rules designated by the Board as unlawful.  A more detailed discussion of the Boeing case is available here.
Continue Reading National Labor Relations Board’s General Counsel Releases Memorandum Providing Guidance On Handbook Rules After Its December 2017 Boeing Decision

On April 11, 2018, former management lawyer John Ring was confirmed via a 50-48 party-line vote to serve on the five-member National Labor Relations Board (“Board”). Ring will replace Chairman Marvin Kaplan, another member of the Board’s Republican majority appointed by President Trump. Ring’s confirmation sets the stage for undoing many Obama-era rulings that have sparked controversy within the employer community. However, not all Obama-era cases may be fair game.
Continue Reading Labor Board Back to Five Member Composition – What Obama-Era Precedent Is Next on the Chopping Block?

An employer violated employee’s labor rights by offering her a separation agreement that contained unlawful terms ruled a National Labor Relations Board (“NLRB”) administrative law judge (“ALJ”) in Baylor Univ. Med. Ctr., Case No. 16-CA-195335 (Fort Worth, TX, February 12, 2018) (“Baylor”).

This decision is one of the first ALJ rulings to apply the NLRB’s new standard for addressing the legality of facially neutral work rules applicable to union and non-union workplaces under The Boeing Company, 365 NLRB No. 154 (December 14, 2017) (“Boeing”). In Boeing, the new Republican NLRB majority overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”) and announced a new standard it will follow when it evaluates a work rule that, when reasonably interpreted, could potentially interfere with union and other protected concerted activity under Section 7 of the NLRA (Section 7 conduct). Notwithstanding the new, more pro-business Boeing standard, the ALJ found that Baylor violated federal labor law when it offered a terminated employee $10,000 in exchange for signing a severance agreement and general release that included two unlawful provisions. The severance provisions at issue in the case were:
Continue Reading Considering Offering Severance Pay in Exchange for Certain Post-Employment Obligations? Think Again.

In 2004, the National Labor Relations Board (NLRB) issued Lutheran Heritage Village-Livonia, 343 NLRB 646 (“Lutheran Heritage”), and held that the mere maintenance of a neutral work rule violated Section 8(a)(1) of the National Labor Relations Act (NLRA) if employees would reasonably construe the rule to prohibit union and other protected concerted activity (Section 7 conduct). For the purposes of this analysis, a neutral work rule is one that does not explicitly reference or restrict Section 7 conduct. In the ensuing years, primarily during the Obama administration, the Board relied on Lutheran Heritage’s “reasonably construe” standard to invalidate countless neutral work rules to the point that practically every employer in America was placed at risk of being found to be in violation of the NLRA by virtue of the wording found in their employment agreements, employee handbooks and work rules.
Continue Reading Striking A New Balance – The NLRB Abandons the Lutheran Heritage Test and Devises a New Standard for Assessing the Facial Validity of Neutral Work Rules