5 Points Of Clarity On Evolving NLRB Doctrines

April 05, 2019

Last month, the Office of the General Counsel of the National Labor Relations Board released five advice memoranda concerning various topics, including the application of the board’s recent Boeing test for evaluating the lawfulness of work rules, the protection of social media postings by employees, and a union’s duty of candor to members concerning changes in job conditions.

These memoranda provide valuable insight concerning the process by which the OGC analyzes unfair labor practice allegations under the National Labor Relations Act, and should assist employers seeking clarification concerning evolving board doctrines.

Guidance on the Application of Boeing to Work Rules Concerning Confidentiality, Email Use and Other Subjects

One of the earliest, and most notable, actions taken by the board following the election of President Donald Trump was the abandonment of the Bush-era test for evaluating the validity of employer work rules. In The Boeing Company,[1] the board rejected its prior standard established in Lutheran Heritage Village-Livonia,[2] finding that it inappropriately involved a “single-minded consideration of NLRA-protected rights,” without taking into account employers’ legitimate justifications for adopting work rules and policies. 

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