The NLRB Issues Two Advice Memoranda That Address Handbook Rules

The National Labor Relations Board (NLRB) historically has had broad reach when scrutinizing an employer’s company policies; however, two recent memorandums set a new standard in determining whether company policies violate the National Labor Relations Act, which prohibits employers from “restraining, coercing, or interfering with” employees who are attempting to improve working conditions.

Over the last decade, facially neutral policies, including Social Media, Cell Phone and Pay policies have been deemed illegal, if they are overly restrictive and unlawfully interfere with the exercise of rights protected by the National Labor Relations Act (NLRA).

The previous standard was set by the Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), which found that 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.

In a recent decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB set a new standard for determining when a work rule violates the Act. The Board eliminated the first aspect of Lutheran Heritage Standard, and replaced it with a new standard that balances the policy’s negative impact on employees’ rights under the act and an employers’ right to maintain discipline and productivity in their workplace.

The Board’s new test will evaluate if:

  1. the nature and extent of the potential impact on NLRA rights, and
  2. legitimate justifications associated with the rule.

The Board also provided guidance to offer greater clarity and certainty to employees, employers, and unions.

According to the NLRB:

  • 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 to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule.  An example would be a rule that prohibits employees from discussing wages or benefits with one another.

While the Board held that maintaining certain rules may be permitted under the law, solely applying those rules to employees who have engaged in protected concerted activity may violate the Act, if the application of these rules is found to be retaliatory.

The Board recently applied this new standard in a decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), finding that Boeing lawfully maintained a no-camera rule that prohibited.  Although, the Board ascertained that the rule could negatively impact employee NLRA rights, the impact was not significant and did not outweigh, comparatively, business justifications, such as national security concerns.

The new standard is discussed in greater detail here.