ce agreement with their union or their coworkers.The NLRB also objected that the clause might be read to forbid an employee from going to the NLRB to file an unfair labor practice charge over either the layoff or the severance agreement. What the NLRB did not say, however, was that a carve-out for going to the NLRB would make this clause permissible. The NLRB, unfortunately, has never been a fan of providing safe harbors or bright lines. Realistically, broad confidentiality regarding the fact and amount of settlement will be effectively unattainable in most situations (pending appellate review of this decision).THE SILVER LINING: THE NLRA’S LIMITED DEFINITION OF EMPLOYEEAgreements with managers or supervisors are unaffected by McLaren Macomb.Supervisors are explicitly excluded from the definition of employee under the NLRA. (29 U.S.C. §152(3).) Managers are likewise excluded as a matter of legislative intent and policy by virtue of Supreme Court decisions. (NLRB v. Bell Aerospace Co., 416 U.S. 267, 267 (1974) (“[T]he purpose and legislative history of the [Act], the Board’s subsequent and consistent construction of the Act …, and the decisions of the courts of appeals all point unmistakably to the conclusion that ‘managerial employees’ are not covered by the Act.”).)WHAT’S NEXT?Employers should consider eliminating both non-disparagement clauses and clauses seeking broad confidentiality on the terms and amounts of the release payments with rank-and-file employees. Those clauses are seldom enforced and now create a downside risk of their own, including NLRB litigation and uncertainty as to enforceability.Employers who continue with such clauses should draft narrowly and add two safety valves: First, a severability clause is now essential so that the intended release is not lost if the agreement is challenged on McLaren Macomb grounds. Second, a carve-out (equivalent to those often found in federal age claim releases) to allow employees to contact the NLRB should be added.Lastly, many are le
No. IPR2018-00752, Paper 8 (Sept. 12, 2018). 136 S. Ct. 2131, 2140 (2016).N.L.R.B. v. Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 293 (1974) (“‘the choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency.’”) (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)).
at *11-12.17Id. at *12 (citing SEC v. Chenery Corp., 332 U.S. 194, 201-02 (1947); NLRB v. Bell Aerospace Co., 416 U.S. 267, 292 (1974)).18 15 U.S.C. § 45(n).19D-Link, 2017 U.S. Dist. LEXIS 152319, at *14; see also id. at *15 (finding the sum total of the FTC’s harm allegations “make out a mere possibility of injury at best”).20Id.21Id.22Id.
421. See id. (citing NLRB v. Bell Aerospace Co., 416 U.S. 267, 292 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765-66 (1969); Goodman v. FCC, 182 F.3d 987, 994 (D.C. Cir. 1999)). 422.
at 168 (Member Hurtgen in dissent noting while it may be permissible to treat housestaff as employees under the Act, it is not compelled).96. See, e.g., Nat’l Labor Relations Bd. v. Bell Aerospace, 416 U.S. 267 (1974) (excluding non-supervisory managerial employees from protections of the Act); Nat’l Labor Relations Bd. v. Hendricks Cnty.
However, it may be possible to argue an abuse of discretion when “the new standard, adopted by adjudication, departs radically from the agency’s previous interpretation of the law, where the public has relied substantially and in good faith on the previous interpretation, where fines or damages are involved, and where the new standard is very broad and general in scope and prospective in application.” Pfaff v. United States HUD, 88 F.3d 739, 748 (9th Cir. 1996)citingNLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267 (U.S. 1974). TheChenerycase referred to above is the second case involving C.T. Chenery.
at 19 (internal quotations omitted and emphasis in original).Finally, the court held that “the Board did not abuse its discretion in adopting a generally applicable rule through adjudication instead of rulemaking because NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974), holds both that ‘the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion.’”
Slip op. at 18-19 (citations omitted).Finally, the court held that the Board did not abuse its discretion in adopting a generally applicable rule through adjudication instead of rulemaking. The court quoted NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 294 (1974), which held that “the Board is not precluded from announcing new principles in an adjudicative proceeding and that the choice between rulemaking and adjudication lies in the first instance within the Board’s discretion.” The court acknowledged that the Supreme Court had added: “[T]here may be situations where the Board’s reliance on adjudication would amount to an abuse of discretion or a violation of the Act.”