David Keating and Kristofor Hanson<\/p>\n\n\n\n
Over the course of the past year, the National Labor\nRelations Board (\u201cBoard\u201d) has indicated its willingness to develop more\nemployer-friendly standards that allow employers more flexibility in managing\ntheir businesses and their unionized workforces. Just in the past week, the Board continued\nits efforts with a ruling allowing for greater ease in implementing unilateral\nchanges to job terms and by seeking input on a troubling standard that had\nprotected outrageous speech by employees.<\/p>\n\n\n\n
In M.V.\nTransportation<\/em>, 28-CA-173726, decided September 10, 2019, the Board overturned\na long-standing, stringent standard that limited an employer\u2019s right to make\nunilateral changes to job terms such as work rules and attendance policies. In doing so, it adopted a new \u201ccontract\ncoverage\u201d test that allows employers more flexibility in making such changes. <\/p>\n\n\n\n The \u201ccontract coverage\u201d standard allows an employer\nto make unilateral changes to employees\u2019 terms and conditions of employment if\nthe labor contract \u201ccontains a provision that broadly grants the employer the\nright to implement new rules and policies and to revise existing ones.\u201d An employer would thus have the right to\nenact changes such as implementing new attendance and safety rules or revise\ndisciplinary or off-duty access policies, according to the Board.<\/p>\n\n\n\n Under the previous \u201cclear and unmistakable waiver\u201d\nstandard, for an employer to make unilateral changes to work rules, attendance\npolicies, or the like, it had to demonstrate that the contract specifically and\nunequivocally waived the union\u2019s statutory right to bargain over that\nparticular issue. In overturning this\nstandard, the Board followed the lead of the D.C. Circuit Court of Appeals,\nwhich had stated that the \u201cclear and unmistakable waiver\u201d standard was \u201cin\npractice, impossible to meet.\u201d<\/p>\n\n\n\n According to the Board, the new \u201ccontract coverage\u201d test\nwill allow every part of a collective bargaining agreement to be given its\nbargained-for effect, including those that give an employer the right to act\nwithout bargaining first.<\/p>\n\n\n\n Board Will Reconsider Its Loss-of-Protection Standards for Profane and Offensive Outbursts of a Racial and Sexual Nature<\/strong><\/p>\n\n\n\n In another notable Board development, on September\n5, 2019, the Board requested briefing on whether it should reconsider its\nstandards for profane outbursts and offensive statements of a racial or sexual\nnature. The Board issued a notice and\ninvitation to file briefs in General\nMotors LLC<\/em>, 14-CA-197985 and 14-CA-208242, seeking public input on whether\nto adhere to, modify, or overrule the standard applied in previous cases in\nwhich extremely profane or racially offensive language has been deemed\nprotected by the National Labor Relations Act (\u201cAct\u201d).<\/p>\n\n\n\n Specifically, the notice seeks comments relating to\nthe following cases: Plaza Auto Center, <\/em>360\nNLRB 972 (2014), Pier Sixty, LLC, <\/em>362\nNLRB 505 (2015), and Cooper Tire, <\/em>363\nNLRB No. 194 (2016). These cases,\ndiscussed in General Motors<\/em>, resulted\nin considerable protection for outrageously offensive statements.The Board\u2019s treatment of such sexually\nand racially offensive statements has been criticized as both morally\nunacceptable and inconsistent with other workplace laws by federal judges as\nwell as within the Board itself.<\/p>\n\n\n\n About the invitation for briefing, Chairman John F.\nRing stated: \u201cThe Board\u2019s request for briefing on this important topic reflects\nits long-standing practice of seeking input from interested parties when the\nBoard believes it can benefit from such briefing. We look forward to\nconsidering the views of all interested parties.\u201d <\/p>\n\n\n\n Amicus briefs not to exceed 25 pages in length may\nbe filed with the Board in Washington, D.C. on or before November 4, 2019. <\/p>\n\n\n\n Lindner & Marsack, S.C. represents employers in all\nareas of labor and employment law. If\nyou have any questions about the notice and invitation to file briefs or any\nother labor or employment issue involving your business, please contact us at\nany time.<\/p>\n","protected":false},"excerpt":{"rendered":" David Keating and Kristofor Hanson Over the course of the past year, the National Labor Relations Board (\u201cBoard\u201d) has indicated its willingness to develop more employer-friendly standards that allow employers more flexibility in managing their businesses and their unionized workforces. Just in the past week, the Board continued its efforts with a ruling allowing for […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[6],"tags":[],"class_list":["post-606","post","type-post","status-publish","format-standard","hentry","category-nlrb"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/p5WrIF-9M","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/606","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/comments?post=606"}],"version-history":[{"count":2,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/606\/revisions"}],"predecessor-version":[{"id":608,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/posts\/606\/revisions\/608"}],"wp:attachment":[{"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/media?parent=606"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/categories?post=606"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lindner-marsack.com\/news\/wp-json\/wp\/v2\/tags?post=606"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}