NLRB revisiting business-friendly decision on workplace rules

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The seal of the National Labor Relations Board (NLRB) is seen at their headquarters in Washington, D.C., U.S., May 14, 2021. REUTERS/Andrew Kelly

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  • Board calls for input on Trump-era test favored by business groups
  • 2017 decision shifted burden to workers challenging employer policies
  • NLRB has called for briefs on other major issues

(Reuters) - The National Labor Relations Board on Thursday asked the public to weigh in on whether the agency should make it more difficult for businesses to impose workplace rules that could discourage workers from speaking out and unionizing.

The five-member board's Democratic majority called for amicus briefs in a case involving waste disposal company Stericycle Inc on whether it should overturn a Trump-era decision that placed a higher burden on workers to prove that employer rules are unjustified.

The 2017 decision involving Boeing Co overturned a 2004 ruling that said policies violate the National Labor Relations Act when they could be "reasonably construed" as restricting union organizing and other concerted activity protected by the law.

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Thursday's case stems from a union's challenge to Stericycle's policies barring worker conduct that could harm its reputation or create conflicts of interest.

Republican NLRB Members Marvin Kaplan and John Ring dissented on Thursday, saying the 2004 standard had created confusion that was properly addressed in the Boeing ruling.

The 2017 decision requires unions and workers to prove that companies had no legitimate reason to adopt specific rules. The NLRB in that case rejected a challenge to Boeing's policy prohibiting recording devices at an assembly plant.

The Biden-era board has also called for amicus briefs on the NLRB's standards for determining worker classification and whether bargaining units proposed by unions are appropriate.

The case is Stericycle Inc, National Labor Relations Board, No. 04-CA-137660.

For Stericycle: Charles Roberts of Constangy Brooks Smith & Prophete

For the union: Claiborne Newlin of Markowitz & Richman

Read more:

NLRB creates new test for workplace rules in Boeing case, overturning Lutheran Heritage

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at