From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
The NLRB announced a new standard in late 2017 for determining whether employers’ seemingly neutral workplace rules interfere with workers’ rights to organize or engage in other protected activities under the National Labor Relations Act. The new approach: balancing the potential impact of a rule on employees’ NLRA rights with an employer’s legitimate business justifications for having the rule.
In its 3-2 ruling in Boeing Corp., the National labor Relations Board overruled a precedent that held policies unlawful if they could be “reasonably construed” by employees as impairing their rights under the NLRA. Instead, the board said it would examine both the potential impact on employees’ NLRA rights and an employer’s legitimate business justifications for adopting or maintaining the rule.
The question is how much Boeing will change the board’s view of facially neutral rules. An administrative law judge’s March 9 decision against the U.S. Postal Service suggests the December 2017 ruling won’t stop the board from challenging the legality of particular policies and rules.
Acting on an individual charge, an NLRB regional director issued a complaint in June 2017 alleging that the Postal Service maintained several unlawful rules in its national and local policies.
Administrative Law Judge Mara-Louise Anzalone acknowledged that the Boeing decision is now the board’s policy, but she reached several different conclusions about its application to USPS rules.
Anzalone said the Postal Service has a nationwide social media policy that prohibits employees from disclosing all “proprietary information and information covered by the Privacy Act.” The ALJ observed the policy only applies to employees who used social media in an “official capacity” and only covers information governed by the Privacy Act. Anzalone said USPS has a unique position because it’s a federal agency with a “compelling” interest in protecting confidential information under the Privacy Act. She wrote that the policy is lawful under Boeing.
However, the ALJ said the Postal Service couldn’t justify a rule prohibiting employees from disclosing any USPS information “that is not otherwise public without authorized management approval.” Anzalone said the rule was sweeping in scope and required employees to seek approval for activities that could easily include communications protected by the NLRA. Stating that the effect on employee rights was more than slight, Anazalone wrote that viewing “this rule within the framework of the Boeing balancing text, I find the scale is decisively tipped in favor of the right of Respondent’s employees to engage in protected conduct.”
The Postal Service maintained a policy that barred employees from using any information resources, on or off duty, to embarrass or discredit the agency, as well as a rule that requires employees to “cooperate in any postal investigation, including Office of Inspector General investigations.”
Anzalone found the first rule was so broad that it would prohibit employees from engaging in online criticism of the employer. “Because the rule so squarely disallows courteous online protected conduct,” the ALJ wrote, “I find that it cannot be rationalized as an effort to promote workplace civility.”
Attorneys involved in the NLRB proceeding didn’t respond immediately to a request for comment.
NLRB attorneys represented the board’s general counsel. USPS attorneys represented the Postal Service.
The case is United States Postal Serv., 2018 BL 81336, N.L.R.B. A.L.J., Case 28-CA-175106, 3/9/18.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)