The NLRB released several Advice Memoranda at the end of January, going back several years and addressing a range of topics. Due to the age of many of the memoranda, several of the issues addressed have since been outdated by further actions of the Board or the courts, but they still contain much useful insight into the reasoning of the Board. The detail is too much to list in this format, so if any of the following catch your eye, read the details here:
- Employer arbitration agreements must not prohibit filing of Board charges.
- Some blanket workplace investigation confidentiality rules are categorically lawful.
- Employers must maintain and disclose information responsive to certain union requests.
- Employer should have pre-disclosed to union its intent to sell certain portions of its business.
- Employer’s rule limiting employee involvement in Board of Directors election considered lawful, while rule limiting employee complaints to the Board of Directors was not.
- Employer violates NLRA by refusing to hire union members.
- Exhaustion of union remedies lawful, but perhaps should not be.
- Employers cannot deduct union dues without specific, express authorization.
One of the disadvantages of unionized workforces is the loss of flexibility. Another recent advice memo from the Board highlights a strategy for proposed language in collective bargaining agreements that may allow for more flexibility.
The Board split a few hairs on Argos USA, LLC, addressing confidentiality policies as a confirmation of the 2017 Boeing decision regarding handbook policies. In Argos, the Board clarified that a company could protect “confidential” information such as “earnings” and “employee information,” while defining those terms as company earnings and company staffing information - and not wage or contact information.
Argos also allowed restrictions on cell phone use, specifically when controlled for safety reasons, and upheld the barring of employee use of email systems for personal purposes.
Ten years after Oregon passed a state law banning employers from forcing employees to attend captive audience meetings, the NLRB has finally filed a complaint in U.S. District Court in Portland. Oregon Attorney General Ellen Rosenblum rebuffed a November letter from the Boards General Counsel asking for help in resolving the conflict.
A good lesson learned in the Boards recent ruling upholding an employer’s denial to provide certain information requested by a union. In such cases, simply rejecting the request usually results in the filing of a unfair labor practice. However, by inquiring about the reasons for the request, the Board has shown that the union must have reasons beyond suspicion that the information might be relevant for the company to be compelled to comply.
As expected, the House passed the PROAct by a 224-193 vote early this month. An evolution of the Employee Free Choice Act (EFCA) that narrowly missed becoming law, the PROAct isn’t likely to gain traction in the Senate.
The White House has signaled its picks for the NLRB, reappointing Marvin Kaplan (R) and former board member Lauren McFarran (D) for new five-year terms. There is still a seat vacant for which no appointment has been suggested.