NLRB Establishes New Standard Governing Workplace Policies, and Finds Boeing’s No-Camera Policy to be Lawful

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Richard D. Bennett                                                         rbennett@farris-law.com

December 15, 2017

Legal Update

NLRB Establishes New Standard Governing Workplace Policies, and Finds Boeing’s No-Camera Policy to be Lawful

With a new General Counsel appointed by President Trump and a Republican majority on the NLRB, the Board has begun to dismantle the Obama era rules and decisions which have drastically changed the legal landscape regarding employee handbook language. Yesterday, in a 3-2 decision involving The Boeing Company, (The Boeing Company and Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, 356 NLRB 154), the National Labor Relations Board overruled its previous decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which articulated the Board’s previous standard governing whether facially neutral workplace rules, policies and employee handbook provisions unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

Under the prior Lutheran Heritage standard, the Board found that employers violated the NLRA by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights.  As a result of the Lutheran Heritage decision the NLRB’s former General Counsel issued a memorandum explaining a litany of handbook policy provisions that might violate the NLRA and therefore were unlawful.  This led employers nationwide to modify handbook provisions replacing longstanding rules that previously had not been shown to violate employees’ exercise of NLRA rights.

The Board has now held that although the maintenance of particular rules may be lawful, the Board will look at how the rule was applied to employees who have engaged in NLRA-protected conduct to determine if the Act has been violated.  In other words, the Board will revert back to looking to see if the employer actually used the rule to interfere with employees’ rights under the NLRB.  No more decisions that well the employer did not use the handbook provision to interfere with employee rights, but they could, someday, so the rule is unlawful.  The Board also established a new test for determining whether a facially neutral policy, rule or handbook provision would potentially interfere with an employee’s exercise of NLRA rights.  The board said it will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.

The Board also announced that, prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.

• Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility. Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.

• Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.

• Category 3 will include rules that the Board will designate as unlawful for an employer to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by legitimate business justifications for the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.

This decision is a big step in righting the ship listing heavily toward the employee and union during the Obama administration.