b'Return to Sanity Part I:NLRB Ends Assault on Common Employment PoliciesSteve WatringAuman, Mahan & FurryAt its core, the National Labor Relations Acts primaryCategory 2:Questionable-Rules purpose is to shield employees who engage in activity forthatwillrequireabalancing their mutual aid and protectioncommonly referred tobetween (a) the extent that the as protected concerted activity. For the last decade,rule interferes with protected the NLRB re-forged this well-intentioned shield forconcerted activity, and (b) It thenemployees into a sword againsttheemployerslegitimate employers. It then wielded thatinterest in promulgating and wieldedsword with reckless abandon bymaintaining the rule. This will invalidating numerous commonenable the NLRB to consider the that swordandcommon-sensepoliciesbusiness justifications for the rule with recklessthatmanyemployershaveoffered by the employer or inherent in the employers maintained for years. Most oftype of business. abandon these policies on their face hadCategory 3:Illegal-Rules where the threat to protected nothing to do with discouragingconcerted activity is so great that it outweighs any the type of employee activity protected by the Laborlegitimate business justification. As an example, the Act. Under the NLRBs standard, however, that did notNLRB indicated that this category includes a rule matter, and the employers legitimate business interestsprohibiting employees from sharing wage and benefit were irrelevant. Furthermore, it was not necessary toinformation with one another.show that the policy actually discouraged anyone. IfWhile this new standard still leaves a large amount the employers policy had even the theoretical potentialof uncertainty, its a great start. It is likely that more for interfering with protected concerted activity, thatguidance will be coming from the NLRB in the future.was enough to invalidate it.In the blink of an eye, that has all changed. If your business has changed or eliminated employment In a decision rendered on December 14, the newlypolicies or rules to try to comply with the NLRBs prior constituted NLRB has restored sanity to its evaluationrequirements, it may be time to pull some of those prior of employment policies. And for the first time in years,policies from your archives and take a new look at them the NLRB will consider the legitimate business interestunder the NLRBs new test. of the employer in promulgating and maintaining theUnfortunately, I must add a couple of notes of caution. policy. While the NLRB issued a number of decisions lastFirst, the NLRB has made clear that even if a rule is legal week reversing cases from the last decade, this decisionas written, it still cannot be applied to interfere with will have the greatest impact on the most employers.protected concerted activity. As with other protected The NLRB will now place employment policies in 3classes, legal advice should be obtained before taking basic categories: adverse job action against someone who has engaged Category 1: Legal-(a) When the rule, reasonablyin protected concerted activity, even if the activity was interpreted, does not interfere with protected concertedin violation of an otherwise legal rule. activity, or (b) when the potential adverse impact of theSecond, the NLRB is infamous for changing course on rule on protected concerted activity is outweighed by thecontroversial issues when a different political party employers legitimate business interest. As examples,assumes control of the presidency. As with prior the NLRB indicated that rules designed to maintain adecisions on the issue, this decision was by an NLRB harmonious working environment and basic civilityvote of 3-2 along party lines. Therefore, this new NLRB standards will now be considered legal. Such rules werestandard may bear a 4 to 8 year expiration date. Save invalidated in prior recent NLRB decisions. your old policies. You may need them later.30 www.mrca.orgMidwest Roofer'