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Top Five Labor Law Developments for October 2019

he National Labor Relations Board (NLRB) has clarified its standard for evaluating the legality of employers’ facially neutral policies, rules, or handbook provisions.

NLRB Advice Memo: Lack of Coworker Support Does Not Render Pay Complaints Unprotected

An employee’s complaints about his pay to coworkers was protected concerted activity under the National Labor Relations Act (NLRA), even though the employee was unsuccessful in enlisting any other employees to support his complaints, the Advice Division of the National Labor Relations Board’s (NLRB) Office of the General Counsel has decided.

‘Vague’ Savings Clause Insufficient to Save Arbitration Agreement Limiting Employees’ Access to NLRB

An arbitration agreement requiring that all “claims or controversies in any way relating to or associated with … employment or the termination of … employment … will be resolved exclusively by binding arbitration,” including “all statutory… claims” violated the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has ruled.

NLRB Takes Commonsense Approach on Work Rule Enforcement

In a recent decision, a majority of the National Labor Relations Board (NLRB) overturned an administrative law judge’s (ALJ) finding that an employer’s confidentiality rule and media rule violated the National Labor Relations Act (NLRA). Applying the balancing test articulated in The Boeing Company, 365 NLRB No. 154 (2017), for the first time, the NLRB emphasized that a work rule is lawful if, when reasonably interpreted, it does not interfere with rights protected by the NLRA.

Labor Board Clarifies Boeing Work Rules Decision, Finds Confidentiality, Media Contact Rules Lawful

An employer’s confidentiality and non-disclosure rule and media contact rule do not violate the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has held. LA Specialty Produce Company, 368 NLRB No. 93 (2019). The Board also substantially clarified its decision in Boeing Co., 365 NLRB No. 154 (Dec. 15, 2017). NLRB Chairman John Ring and Members Marvin Kaplan and William Emanuel were in the majority. Member Lauren McFerran dissented.

NLRB Majority Curtails Review of Many Common Work Rules

On October 10, 2019, the National Labor Relations Board issued an important decision in LA Specialty Produce Co., 368 NLRB No. 93 (2019). In its first ruling applying the standard established in The Boeing Co., 365 NLRB No. 154 (2017) for determining the validity of rules, policies and handbook provisions under the National Labor Relations Act (NLRA), the Board majority simplified and curtailed its analysis, and made short work of challenges to rules pertaining to confidential client and vendor lists and responses to media inquiries made on behalf of the employer. The Board concluded both types of rules are categorically lawful.

Labor Board: Unions Waived Right to Bargain Over Changes to Retiree Medical Benefits

The National Labor Relations Board (NLRB) has held that an employer did not violate the National Labor Relations Act (NLRA) when it unilaterally changed retirees’ medical benefits without first negotiating with the unions that represented its employees. E.I. Du Pont De Nemours and Co., 368 NLRB No. 48 (Sept. 4, 2019).

Unfettered Free Speech or Profane Outbursts? NLRB Invites Input to Determine Scope of Section 7 Protection

The National Labor Relations Board (“Board”) is inviting input “to aid the Board in reconsidering the standards for determining whether profane outbursts and offensive statements of a racial or sexual nature, made in the course of otherwise protected activity” should lose the protection of Section 7 of the National Labor Relations Act (“Act”).

NLRB Strengthens Property Rights, Employers May Limit Off-Duty Access by Contractors’ Employees

The National Labor Relations Board (NLRB) has ruled that a property owner lawfully may exclude off-duty contractor employees from engaging in leafletting and other Section 7 activity on its property, unless: (1) the contractor employees work “regularly” and “exclusively” on the property; and (2) the property owner fails to show the contractor’s employees have one or more reasonable non-trespassory alternative means to communicate their message. Bexar County Performing Arts Ctr. Found. d/b/a Tobin Ctr. for the Performing Arts, 368 NLRB No. 46 (Aug. 23, 2019).

Proposed Labor Board Rule Change Would Close Union-Recognition Loophole in Construction

The National Labor Relations Board (NLRB) has issued a Notice of Proposed Rulemaking (NPRM) that includes changes to its representation case procedures that potentially may affect both construction employers and building trades unions.
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