Articles Discussing Protected Concerted Activity Under The NLRA.

In The Boeing Co., 365 NLRB No. 154 (2017), the Board approved the maintenance of rules promoting “harmonious interactions and relationships,” and requiring civility in the workplace, as categorically lawful. “To the extent the Board in past cases has held that it violates the Act to maintain rules requiring employees to foster ‘harmonious interactions and relationships’ or to maintain basic standards of civility in the workplace, those cases are hereby overruled.”

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.

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).

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.”

Executive Summary: In a 2-1 decision, the National Labor Relations Board (“NLRB” or the “Board”) held that a hospital’s policy that required direct patient care providers to wear hospital branded badge reels violated the National Labor Relations Act (NLRA or the Act) because that policy was not specifically limited to immediate patient care areas. See Long Beach Memorial Medical Center, Inc. and California Nurses Association/National Nurses Association (CAN/NNU), Case 21-CA-157007 (April 20, 2018).

The U.S. Court of Appeals for the District of Columbia Circuit has refused to enforce the NLRB’s order finding that an employee’s discharge violated the National Labor Relations Act because the Board did not satisfy the Supreme Court’s two-prong Jefferson Standard test for determining whether an employee’s disparaging statements to third parties about his employer are protected.

Participating in the February 2017 “Day Without Immigrants” demonstration was protected concerted activity, according to an August 30, 2017, advice memorandum released on March 13, 2018, by the National Labor Relations Board General Counsel’s Division of Advice.

The National Labor Relations Board has held that an employee lost the protection of the National Labor Relations Act when he improperly accessed a secure area of the employer’s hotel, even though he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018).

xecutive Summary: An administrative law judge recently ruled that a Pacific Northwest fast food chain violated the National Labor Relations Act (NLRA) by maintaining a policy that prohibited off-duty employees from loitering or “hanging out” on store property, even though no employee was actually disciplined for violating the policy.

The National Labor Relations Board has denied a motion for summary judgment by the NLRB’s General Counsel in a case involving Mercedes-Benz U.S. International Inc.’s maintenance of an employee handbook rule prohibiting the use of cameras and video recording devices without prior approval.

xecutive Summary: On April 21, 2017, the United States Court of Appeals for the Second Circuit in National Labor Relations Board v. Pier Sixty, LLC, enforced an order of the National Labor Relations Board (NLRB) finding that an employee did not lose the protections of the National Labor Relations Act (Act) by posting a derogatory comment about his supervisor on Facebook while encouraging his co-workers to vote for the union in an upcoming election and in concluding that the employer violated the Act by discharging the employee. The Court of Appeals stated that the employer “failed to meet its burden of showing that Perez’s [the employee’s] behavior was so egregious as to lose the protection of the NLRA under the Board’s ‘totality-of-the-circumstances’ test.”

In a ruling that affects both union and non-union employers, the U.S. Court of Appeals for the D.C. Circuit recently held in Banner Health System v. NLRB that employers may not prohibit employees from discussing information related to employees’ salaries and discipline. While this decision does not break new ground, it does provide employers with some guidance on how the D.C. Circuit will scrutinize efforts to maintain confidentiality surrounding HR investigations.

In the first few weeks of the Trump Presidency, there have been numerous marches, protests and other forms of political advocacy expressing views both in support of and in opposition to the President’s various appointments, executive orders and other actions. Employers concerned about protests potentially planned for the next few months and political advocacy in general understandably have questions surrounding how political demonstrations may affect their workplaces.

A divided panel of the U.S. Court of Appeals for the First Circuit has upheld a National Labor Relations Board decision that a Massachusetts automobile dealer’s policy banning the wearing of “message pins” violated union insignia protections under the National Labor Relations Act. Boch Imports, Inc., d/b/a Boch Honda v. NLRB, Nos. 15-1653, 15-1721 (1st Cir. June 17, 2016).

The legality of employer work rules continues to draw National Labor Relations Board scrutiny on a regular basis.