Republican NLRB Member Argues for New Test to Determine Lawfulness of Workplace Rules

Employment Law, Technology

Dissenting in a case involving the legality of rules regulating workplace interactions, Republican National Labor Relations Board Member Philip Miscimarra contended that a new balancing test, recognizing business realities, should be adopted to determine whether these types of rules violate the National Labor Relations Act.  The majority in William Beaumont Hospital found the rules in question to be unlawful, relying on the test from a 2004 case, Lutheran Heritage Village-Linovia.  In the 2004 case, the Board held that an employer violates the NLRA by enacting a rule that employees would "reasonably understand" to prohibit NLRA-protected activity.  Miscimarra would adopt a "meaningful balancing" test that takes into account employee rights as well as legitimate employer interests.  The rules at issue were a provision prohibiting conduct that "impedes harmonious interactions and relationships" and a provision prohibiting "negative or disparaging comments" of employees or physicians.  While the majority maintained that the case was "unremarkable" and its impact "modest," Miscimarra wrote that the Board missed an opportunity to clarify the test to take the employer's justification for the rule into account.