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NLRB Counsel Returns Common Sense To Workplace Rules

The National Labor Relations Board General Counsel, Peter Robb, recently outlined the agency’s plan of action for evaluating workplace rules in his latest memorandum to regional offices—and the message is welcome news for employers. The 20-page memo is a reaction to the Board’s December 2017 decision in Boeing Co. that upended the controversial Lutheran Heritage standard and helped start to restore balance to workplace rules. This memo takes the next step in that process.

Top Five Labor Law Developments for May 2018

The U.S. Supreme Court has ruled that class action waivers in employment arbitration agreements do not violate federal law. Epic Systems Corp. v. Lewis, No. 16-285; Ernst & Young LLP et al. v. Morris et al., No. 16-300; National Labor Relations Board v. Murphy Oil USA, Inc., et al., No. 16-307 (May 21, 2018). The Supreme Court’s decision resolves the circuit split on whether class or collective action waivers contained in employment arbitration agreements violate the National Labor Relations Act. They do not, the Court ruled in a 5-4 decision. Justice Neil Gorsuch wrote for the majority of the Court. Justice Ruth Bader Ginsburg dissented, describing the majority holding as “egregiously wrong.”

NLRB General Counsel Issues New Guidance Concerning Employer Handbook Rules

Last week, the National Labor Relations Board’s General Counsel issued a memorandum to NLRB regional offices interpreting the Board’s recent Boeing decision. In Boeing, the Board overturned that part of its Lutheran Heritage test pursuant to which the Board invalidated facially-neutral work rules if they could be interpreted to limit an employee’s right to engage in protected concerted activity. In Boeing, the Board, by way of a newly-announced balancing test, shifted the focus to prohibiting only those rules that, when reasonably interpreted, would interfere with protected concerted activity. This new balancing test weighs the impact of a facially-neutral rule on employee rights versus employer interests in, for example, safety, productivity, or discipline. The Board further explained in Boeing that, over time, the application of its new test would yield three categories of rules, the goal of which is to provide employers, employees, and unions with guidance regarding their rights and and responsibilities under federal labor law. The General Counsel’s memorandum provides the following additional guidance concerning the Boeing categories:

NLRB Revives Helpful Personnel Policies

Traditionally, employers rely on personnel policies and employee handbooks to communicate workplace expectations and benefits to employees. Earlier this decade, the National Labor Relations Board (“NLRB”) began aggressively scrutinizing those policies and concluding that many “could”—as opposed to would or did—interfere with employee-protections arising from the National Labor Relations Act (“NLRA”). At the time, many well-intentioned policies fell short of the NLRB's broad, subjective analysis, triggering policy revisions or deletions. Earlier this month, however, the NLRB General Counsel issued a new guidance document, Memorandum GC 18-04, confirming that the NLRB has switched from the earlier antagonistic approach to a more balanced analysis of standard personnel policies. The NLRB’s new approach will help employers communicate important workplace policies and reduce the threat of subjective unfair labor practice charges.

NLRB General Counsel Issues Handbook Guidance

Executive Summary: In a 20-page memorandum dated June 6, 2018, National Labor Relations Board (NLRB) General Counsel Peter Robb issued guidance to the Regions on handbook rules in light of the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).

NLRB General Counsel Issues Guidance Regarding Handbook Rules

On June 6, 2018, NLRB General Counsel Peter Robb issued a lengthy 20-page Memorandum (GC 18-04) providing detailed guidance regarding enforcement of “Handbook Rules Post-Boeing.”

NLRB Issues Memo on Employer Handbook Rules

Guidance from the National Labor Relations Board (NLRB) gives employers more latitude in drafting workplace rules, including rules regarding workplace civility. A memo from NLRB General Counsel Peter Rob directs regional directors to shift the presumption about whether a work rule violates the National Labor Relations Act (NLRA) in favor of employers. The memo was issued to provide guidance on the standards to use in reviewing work rules following the NLRB's Boeing decision in December 2017.

Labor Board Will Soon Issue New Rule To Solve Joint Employment Dilemma

In a rare procedural move that caught many by surprise, the National Labor Relations Board announced on Wednesday that it will soon start the rulemaking process to clarify the current joint employment standard. Perhaps frustrated by uncertainty resulting from the recent reversal of a Board decision on the topic and the seemingly stalled litigation sitting at the D.C. Circuit, Chairman John Ring said that he hopes NLRB rulemaking would bring resolution to this matter “as soon as possible.”

NLRB Will Propose Joint Employment Rule Soon

The National Labor Relations Board (NLRB) will propose rules for determining whether one business is the joint employer of another business's employees under federal labor law by this summer.

Boeing Workers in South Carolina Vote to Join Union

A group of employees at Boeing's South Carolina plant have voted to unionize in a manner that may have implications for other employers. Flight line mechanics voted 104 to 65 Thursday to join the International Association of Machinists (IAM) union as a "micro-unit," representing only a small portion of the plant's nearly 7,000 employees. Boeing management expressed disappointment with the result, and said it will try to get the vote thrown out.