Tuesday, June 14, 2016

Philip Miscimarra is mad as hell, and you should be too!

NLRB Member Philip Miscimarra is mad as hell about the Board’s current position on employee-handbook policies and protected concerted activity, and he’s not gonna to take this anymore.

At issue in Schwan’s Home Service (6/10/16) [pdf] is the viability of an various workplace communication policies. A two-member majority of the NLRB applied the “reasonably construe” test of Lutheran Heritage—that a work rule violates the NLRA if one could reasonably construe it to prohibit Section 7 activity—to conclude that the various policies were unlawful as drafted.

In dissent, Member Miscimarra picked up the theme he started earlier this year in William Beaumont Hosp. and delivered a blistering 13-page rant against the NLRB’s current position on the continuing viability of Lutheran Heritage on facially neutral workplace rules. Of particular import, he fails to understand how the NLRB can apply a rule that makes compliance impossible and suggests that employers are better of without any work rules than to take a chance of NLRB invalidity.
Under Lutheran Heritage, the Board has invalidated many facially neutral work rules merely because they are ambiguous. However, … it is unreasonable to find that reasonable work requirements violate the NLRA merely because employers cannot discharge the impossible task of anticipating and carving out every possible overlap with some potential NLRA-protected activity.
The Lutheran Heritage “reasonably construe” test stems from several false premises that are contrary to the NLRA, the most important of which is a misguided belief that unless employers formulate written policies, rules, and handbooks that can never be construed in a manner that conflicts with some type of hypothetical NLRA protection, employees are best served by not having employment policies, rules, and handbooks at all. In this respect, Lutheran Heritage requires perfection that literally has become the enemy of the good. 
Employers, get mad, and let those are in a position to do something about the inane application of this NLRB rule hear your anger.

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