Since 2017 the National Labor Relations Board (NLRB) has reviewed employer work rules (union and non-union) under its standard adopted in the Boeing Company case and a subsequent case with additional revisions adopted in its LA Specialty Produce Co. case in 2019.
The Boeing standard balances employees’ right to engage in organizing and other protected concerted activity with the employer’s right to implement rules that protect its interests. The Boeing framework requires the NLRB to “interpret rules from the standpoint of a reasonable employee rather than that of traditional labor lawyers.” The intent of the Boeing and the subsequent LA Specialty Produce rulings was to bring some balance to the NLRB’s review of employer rules.
The standards classified rules/policies three different ways:
- Rules that are legal in all cases because they cannot be reasonably interpreted to interfere or because interference is outweighed by business interests,
- Rules that are legal in some cases depending upon their application, and
- Rules that are always illegal because they interfere with workers’ rights in a way not outweighed by business interests.
The previous Board (pre-2017) looked at employers’ rules from the standpoint of whether any given rule tended to “coerce employees in the exercise of their Section 8 (NLRA) rights to engage in protected concerted activity” and in turn their Section 7 rights to organize, form a union, and to bargain.
The new Board is advocating going back to an older rule handed down in a case right out of our own locality here called Lutheran Heritage Village – Livonia that was used about 13 years before the “Trump” Board adopted the Boeing standard. The Lutheran Heritage Village standard held reviews of employers would look at employers’ rules through whether a “facially neutral workplace rule would reasonably” be construed to “prohibit or otherwise chill potential Section 7 activity.”
The NLRB’s call for a review of the Boeing standard is coming through a recent NLRB case called Stericyle Inc. and Teamsters Local 628 where the Administrative Law Judge (ALJ) using the Boeing standard held that a number of the employer’s rules were in fact a violation of Section 8 (a) (1) of the NLRA.
The rules being challenged are not “old school” rules like no spying on employees or do not threaten employees, but contemporary employer rules with a solid basis and purpose to maintain order in the workplace. In the case at hand, the ALJ found the employer’s rule on personal conduct was too broad and therefore an unfair labor practice. The same was found with its conflict of interest policy. It also found a rule common to most employers that holds employees involved in harassment complaints to a level of confidentiality. This last rule is being reviewed in this case’s intent is to protect the parties involved in the harassment from further abuse by prohibiting the disclosure of information to third parties during a harassment investigation. This particular rule is even favored by the EEOC. Many other ubiquitous employer rules will now be challenged by the NLRB as unlawful if it re-adopts the pre-2017 standard of rule/policy review.
It the Boeing standard is changed, other rules will also be open to challenge. These rules are non-disparagement rules, rules prohibiting outside employment, use of company logos, and rules that overly restrict an employee’s use of internet and intranet voicemail.
The NLRB, now under control by appointees of the pro-union Biden administration, is calling for briefs by both sides as it seeks to set a more permanent basis under the Lutheran Heritage Village – Livonia ruling.
The NLRB is asking for briefs on three questions:
“1. Should the Board continue to adhere to the standard adopted in Boeing Co. and revised in LA Specialty Produce Co.?
2. In what respects, if any, should the Board modify existing law addressing the maintenance of employer work rules to better ensure that:
(a) the Board interprets work rules in a way that accounts for the economic dependence of employees on their employers and the related potential for a work rule to chill the exercise of Section 7 rights by employees;
(b) the Board properly allocates the burden of proof in cases challenging an employer’s maintenance of a work rule under Section 8(a)(1); and
(c) the Board appropriately balances employees’ rights under Section 7 and employers’ legitimate business interests?
3. Should the Board continue to hold that certain categories of work rules—such as investigative-confidentiality rules as addressed in Apogee Retail LLC d/b/a Unique Thrift Store, 368 NLRB No. 144, (2019), non-disparagement rules as addressed in Motor City Pawn Brokers, 369 NLRB No. 132 (2020), and rules prohibiting outside employment as addressed in Nicholson Terminal & Dock Co., 369 NLRB No. 147 (2020), and G&E Real Estate Management Services d/b/a Newmark Grubb Knight Frank, 369 NLRB No. 121 (2020)—are always lawful to maintain?”
The amici (friends of the court) briefs must be filed by March 7, 2022. Responsive briefs have until March 22. 2022 to be filed with the NLRB.
Employers are advised to once again review their employment policies as the NLRB again changes its standards for employer rules and/or policies that it determines could result in an unfair labor practice no matter how legitimate and common sense the rule may be.
Source: Press Release NLRB 1/6/2022. Notice and Invitation to File Briefs by Chairman McFerran and Members Kaplan, Ring, Wilcox and Prouty (1/6/2022)