During the last half of May 2020, the National Labor Relations Board (Board) issued four decisions upholding the legality of employer facially neutral work rules. Two of the decisions applied the Boeing standard to assess the legality of work rules or policies while the other two decisions restored past precedent to find that an employers’ property rights outweighed employees’ right to engage in protected activities under §7 of the National Labor Relations Act (Act). The key highlights of those decisions, including guidance on drafting work rules and policies that are lawful under the Boeing standard, are summarized below.
Protecting Concerted Activity during the COVID-19 Pandemic
Key Points
- Media policies which prohibit employees from communicating with the media must be narrowly tailored to protect legitimate business interests such as protecting confidential information and controlling statements made on behalf of the employer; and
- Media policies that specifically exclude communications by employees that are not made on behalf of the employer and that
Confidentiality and No-Participation Provisions in Voluntary Severance Agreements Lawful
On March 16, 2020, the Board issued its decision in Baylor University Medical Center and Dora S. Camacho reversing the 2018 ALJ decision and holding that Confidentiality and No Participation in Third-Party Claim provisions in a voluntary severance agreement are lawful. The decision overrules Clark Distribution System, Shamrock Foods Co., and Metro Networks to the extent the holdings extend beyond their fact patterns involving employees who were unlawfully dismissed for exercising their rights under the National Labor Relations Act (Act).
Labor Relations Issues and COVID-19: Avoiding NLRA Violations through Proactive Measures
COVID-19 presents a formidable health and safety challenge to employers, and unionized employers also must address issues in the context of their obligations under the National Labor Relations Act (NLRA) and a collective bargaining agreement. The broad range of issues includes both mandatory subjects of bargaining and business decisions that impact the employees of the bargaining unit. Such issues include health and safety concerns, attendance and staffing issues, wage and hour issues, leave issues, changes in work schedules, layoffs, and temporary reductions in hours or closure of the business to reduce infection rates. Missteps in effectuating these major changes can lead to violations of the NLRA and an increase in the incidence of workers refusing to work. Employer’s ability to navigate these issues successfully requires an understanding of their rights under both the collective bargaining agreement and federal law in this novel situation. Here are some key considerations and proactive measures employers can take to facilitate timely and decisive employment actions.
NLRB Denies Collective Bargaining Rights to Adjunct Faculty at Religious University
Husch Blackwell issued a client legal alert regarding the U.S. Court of Appeals for the D.C. Circuit’s decision in Duquesne University of the Holy Spirit v. NLRB, which resulted in the denial of collective bargaining rights to adjunct faculty members employed by Duquesne University, a religious university. In summary, the court held that the
Employers Can Terminate Health Insurance Benefits for Union Employees During a Strike
The UAW strike against GM represents the latest strike in a string of labor disputes between management and union workers. Continuation of health benefits during a strike is always a consideration in such situations.
After initially stating it would not pay for striking workers’ health care benefits, GM reversed its decision. GM’s decision to terminate health benefits would have shifted the burden of paying for striking workers’ health insurance benefits to the employees under COBRA. The GM situation brings to the forefront the legal issue of who is responsible for the payment of the health insurance benefits for workers who have stopped working to exercise their right to participate in a union strike.
NLRB Expands Employers’ Right to Exclude Nonemployee Union Solicitations on Private Property
On September 6, 2019, the NLRB (Board) issued the decision, Kroger Limited Partnership I Mid-Atlantic and United Food and Commercial Workers Union 400 (Kroger decision), which overruled Sandusky Mall Co., and limited the right of nonemployee union agents to access employer property for the purpose of union solicitations. The 3-1 decision, split along
Repeated Strikes in Furtherance of Common Goal Defeats Protected Status for Strikers
Key Points
- Direct evidence of a plan to engage in repeated strikes to achieve a common goal establishes that such strikes are unprotected, intermittent strikes.
- Only in the absence of direct evidence will the Board consider extenuating circumstances to evaluate whether multiple strikes constitute protected activity.
On July 25, 2019, a majority of the NLRB
New Rulemaking at NLRB Focuses on Three Discretionary Bars to Representation Election Petitions
In a notice of proposed rulemaking and request for comments published on August 12, 2019, the NLRB exercised its discretionary rulemaking authority to propose changes to three discretionary election bar policies:
- The blocking charge policy,
- The voluntary election bar policy, and
- For the construction industry only, the contract bar policy.
These policies currently bar, for
NLRB Poised to Exterminate the Cat and Rat, According to NLRB Advice Memo
On May 17, 2019, the Office of the General Counsel (GC) released an advice memorandum dated December 20, 2018 signaling the National Labor Relations Board’s (Board) intent to continue to overturn precedent.