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Complying with the National Labor Relations Act

Published:  August 28, 2018

For employers, the most challenging aspect of complying with the National Labor Relations Act is the likelihood that National Labor Relations Board policy can change drastically over short periods of time. Over the last decade, the Obama-era NLRB greatly expanded the definition of protected concerted activity. Perhaps the biggest expansion during this time occurred in 2015, when NLRB General Counsel issued a guidance memo which clarified the NLRB’s interpretation of the 2004 Lutheran Heritage case.

Under Lutheran Heritage, a neutral workplace policy violated the National Labor Relations Act if an employer could reasonably interpret the policy to prohibit NLRA-protected activity. The 2015 memo signaled that the NLRB interpreted this ruling broadly. Many common, and in some cases common sense, workplace policies were interpreted to be unlawful. For example, the NLRB stated that the following policy was unlawful:

“Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”

The NRLB ruled this policy unlawful because it could be interpreted to prohibit disrespectful conduct towards a supervisor, and which could be interpreted to prohibit employees’ protected right to criticize or protest an employer’s labor policies or treatment of employees. (By comparison, policies requiring respectful conduct towards coworkers, competitors and customers were considered lawful.)

However, change occurs rapidly at the NLRB. In December 2017, the newly constituted Board overruled Lutheran Heritage in the Boeing Company case. The Board ruled that the lawfulness of a neutral workplace policy will be analyzed based on: 1) the nature and extent of the potential impact on collective bargaining rights from the employee’s perspective, with 2) the legitimate justifications for the policy’s enactment given the specific facts and circumstances of a case.

In June 2018, the new General Counsel issued a new post-Boeing guidance memo. This memo specifically validated broad policies requiring civility, such as:

“Behavior that is rude, condescending or otherwise socially unacceptable is prohibited.”

This policy marks a significant departure from the previous standard. Yet the question remains: for employers that have worked diligently to ensure their policies comply with the NLRA, should they amend their current policies to match the new standard?

The trouble with doing so is the uncertainty of the Board’s composition, and therefore ideology. The possibility the Democrats could retake the Senate and Presidency within the next few years, creates concern that the Boeing Company decision itself could be overruled within a short period of time. Employers could see a shift back to the Lutheran Heritage-era requirements. Therefore, employers should carefully consider whether policy revisions are worth the risk that they might become unlawful again in a few years.

 

If you would like more information, or have any questions on any aspect of labor and employment law, please contact the attorneys at Royal, P.C.

 

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