REPUBLICAN-MAJORITY NLRB COMES TO LIFE WITH TWO ANTI-WORKER DECISIONS
The Republican-majority National Labor Relations Board—currently consisting of Chairman James Murphy, Member Scott Mayer, and Member James Macy, all of whom were nominated by President Trump, as well as Member David Prouty, initially a Biden nominee—recently handed down a pair of unfortunate decisions which promise to restrict the rights of workers and their unions.
In Lion Elastomers LLC, 375 NLRB No. 41, 16-CA-190681, the Murphy-Mayer-Macy majority revised—yet again—the legal standard the Board will use to determine whether workers who engage in “misconduct” (i.e., are accused of violating employer policies) in the context of otherwise protected activity are protected by the National Labor Relations Act. The decision sets aside General Motors LLC, 369 NLRB No. 127 (2020), which favored the simple balancing of an employee’s Section 7 rights against the seriousness of their alleged misconduct. The majority has now re-adopted a convoluted “setting-specific” analysis where it matters more where the “misconduct” occurred. For example, the new analysis would provide workers with arguably more protection when they violate employer rules on a picket line, than they would have in a grievance meeting or when making critical posts about management on social media. These “setting-specific” rules are—intentionally—quite confusing and vague, and have the potential to discourage workers from getting involved in labor disputes in the first place. Unions should reach out to their legal counsel for further insight to navigate this change.
The Murphy-Mayer-Macy trio also acted against workers’ interests in Michigan Education Association, 375 NLRB No. 42, 07-CA-261392. There, the majority made it easier for employers to get out of responding to information requests: the decision held that when employers refuse to provide information on the basis of attorney client privilege—and can show that the information at issue is genuinely covered by that privilege—the employer does not need to go through the extra step of weighing its confidentiality interest against the union’s need for the information. Nor does the employer need to offer an accommodation to the union. It can simply withhold the requested information.
While unions should be aware that an employer cannot merely assert the attorney client privilege without evidence—they do have to prove that the requested information is in fact covered—the Board (as it is currently composed) views the privilege broadly. In Michigan Education Association, for example, over Member Prouty’s dissent, the majority agreed with the employer that entire investigation reports and interview notes, when drafted by an attorney, can fall under the attorney-client privilege.
In all likelihood, additional anti-worker Board decisions will follow these shortly. Please follow Labor Law Updates for prompt summaries and check in with your regular attorneys often. Don’t mourn—Organize!