NLRB set to revise employee conduct, bargaining unit standards

The National Labor Relations Board (NLRB) has invited interested parties to file briefs in two important cases, making clear its intention to reexamine and revise two defining rulings by the Trump Board: the expansion of employer rights to regulate employee conduct and the elimination of the recognition of microunits within a workforce.

‘Handbook rule’ to be revisited

In 2017, the NLRB established a new standard for analyzing the lawfulness of employer work (or handbook) rules in Boeing Co. At the root of the issue are what constitutes protected concerted activity on workers’ behalf and to what degree an employer can impose facially neutral “conduct” rules without violating the National Labor Relations Act (NLRA). In Boeing, the Board significantly expanded employers’ rights in what many saw as an appropriate correction of an overexpansive interpretation by the Obama Board.

In issuing the invitation for comments, the NLRB stated its belief that it’s appropriate, with public participation, to evaluate the standard adopted in Boeing. Despite the general belief that the Democratic majority will return the law to a more worker-friendly interpretation, the Board signaled its awareness of the controversial nature of the issue by identifying a number of particular conduct rules (e.g., investigative confidentiality, nondisparagement, and prohibitions against outside employment) as possibly always being lawful. Some modification of the Boeing rule is anticipated.

Microunits making a comeback?