The National Labor Relations Board’s sole Democrat, Chairman Lauren McFerran, has issued two new dissents that portend how a Biden Board likely will reverse precedent established by the.
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On May 3, 2021, the National Labor Relations Board (“NLRB” or the “Board”) found that the employer’s policy barring workers from recording conversations with their colleagues did not violate the National Labor Relations Act (the “Act”). The Board’s decision further clarified how its analysis under
Boeing Co., 365 NLRB No. 154 (2017), providing three categories, should be applied in evaluating workplace rules and policies.
The employer was alleged to have violated the Act by maintaining a work rule stating, “employees may not record telephone or other conversations they have with their co-workers, managers or third parties unless such recordings are approved in advance by the legal department.” The ALJ held that the policy’s ability to serve the company’s interests was outweighed by how it interfered with workers’ Section 7 rights. The Board, however, overturned the ALJ’s decision, holding, �
Seyfarth Synopsis
: When a new President is about to shift the balance of power at the National Labor Relations Board, a Board dissent can foreshadow how the newly constituted Board will consider a similar issue. Such is the case in Stericycle, Inc., a February 17, 2021 divided Board decision addressing unilateral implementation of an employee handbook.
In
Stericycle, the employer had a collective bargaining relationship with the Teamsters. In February 2015, the employer distributed a company-wide handbook at one of the union facilities. The handbook was inconsistent with several provisions in the parties’ collective-bargaining agreement, including those involving attendance, overtime, time off, work rules, discipline, grievance procedures, and the employee probationary period.
Tuesday, March 2, 2021
2021 is in full swing and the Biden administration already is making waves in the world of labor law, including by terminating the sitting general counsel of the National Labor Relation Board within hours of the President’s inauguration. Once Biden has appointed additional members to the NLRB – likely later this year – employers can expect significant changes that may impact how they run their businesses. Let’s take a look at three of the big changes we may see that will impact both union and non-union companies alike.
NLRB Scrutiny of Personnel Policies
Under the Obama Board, the NLRB stuck down numerous everyday personnel policies – including those of non-union employers – on grounds those polices ran afoul of the National Labor Relations Act (NLRA). Social media policies, confidentiality policies, workplace civility policies, and other common policies were invalidated in various decisions between 2009 and 2016. The NLRB did so
Introduction
In our last Review, we reported that the National Labor Relations Board had a very busy year. Despite the challenges of the COVID-19 pandemic, 2020 was also a fairly busy year for the Board. In its final year, the Trump Board produced a number of key decisions for employers. Whether those decision stand the test of time remains to be seen, because the Biden Board will soon begin its work. In the meantime, we will review the highlights from 2020 and preview some of the possible changes that may be down the road.
Like so many of us, the Board was forced to convert nearly of its employees to remote work in March of 2020, and ultimately transitioned most of its activities to a virtual environment. This included videoconferencing for unfair labor practice (“ULP”) and representational proceedings. The Board also continued to conduct representational elections, following a brief two-week shut down.