NLRB General Counsel Guidance Clarifies Work Rule Landscape Following Boeing
The National Labor Relations Board’s (“NLRB” or the “Board”) General Counsel, Peter Robb, recently released Office of the General Counsel Memorandum GC 18-04 (“GC 18-04” or the “Guidance”), setting forth written guidance to NLRB Regional Offices regarding the Board’s more flexible approach to interpreting work rules in the wake of its decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017). The Guidance signifies another step towards the Board’s adoption of an employer-friendly approach under its new Republican majority.
In particular, the Guidance instructs that Regions should “now note that ambiguities in rules are no longer interpreted against the drafter,” and that generalized employment policies and provisions “should not be interpreted as banning all” conceivable worker activity protected by law. Essentially, GC 18-04 shifts the presumption about ambiguous or broadly written rules in favor of employers.
Interpreting Work Rules Under Boeing
In its 2004 decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board held that employers may violate Section 7 of the National Labor Relations Act (“NLRA” or the “Act”) simply by maintaining handbook policies and work rules that might “reasonably be construed” by employees to restrict their ability to engage in protected concerted activity under the Act. During the eight years of the Obama Administration, the Board applied this standard extremely broadly, often seeming to strain to find possible interpretations of work rules that would render them unlawful.
In December 2017, the Board overturned the Lutheran Heritage standard in its Boeing decision, establishing a less burdensome standard for reviewing whether employer rules are lawful under the Act. In Boeing, the Board established a two-factor balancing test for rules cases, under which the Board will weigh: “(i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.” The Boeing test takes into account the type of NLRA-protected activity potentially being implicated, different industries and work settings, and the circumstances giving rise to the specific rule at issue.
The Board in Boeing additionally instructed that, moving forward, facially neutral work rules (i.e., those that do not specifically ban protected concerted activity, or that are not promulgated directly in response to organizing or other protected concerted activity) will generally be placed into one of three categories:
- Category 1: Rules the Board designates as lawful, either because (i) a rule, when reasonably interpreted, does not prohibit or interfere with NLRA-protected rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.
- Category 2: Rules warranting individual scrutiny to determine whether they interfere with NLRA rights and, if so, whether any adverse impact on protected conduct is outweighed by legitimate justifications.
- Category 3: Rules that are unlawful to maintain because they would limit protected conduct, and the adverse impact on protected conduct is not outweighed by justifications associated with them.
Boeing is an abrupt departure from Lutheran Heritage and subsequent Obama-era precedents under which work rules could be struck down as unlawful if they could “reasonably be construed” by employees to restrict their ability to engage in protected activity under the Act. Boeing therefore signals the new, Republican-majority Board’s intention to be far more circumspect in striking down employer rules and handbook policies.
Guidance’s Treatment Of Boeing’s Three Categories
GC 18-04 instructs the Board’s Regions with respect to placing work rules into each of the three Boeing categories.
As an initial matter, the Guidance states that the following types of rules – many of which were often struck down by the Obama-era Board – are generally lawful, and should be classified under Category 1:
- Civility rules that generally prohibit rude or otherwise socially unacceptable behavior, including disparaging other employees;
No-camera/no-recording rules, such as those found in Boeing and the more recent decision in Nicholson Terminal & Dock Co., 07-CA-187907, that forbid employees from using cameras, video recorders, or any audio or visual recording equipment, including the camera or recorder function on a personal cell phone;
Rules against insubordination, non-cooperation, or similar on-the-job conduct that adversely affects operations;
Disruptive behavior rules, such as prohibitions on creating a disturbance on company premises or creating discord with clients or fellow employees;
Rules targeted at protecting confidential, proprietary, and customer information or documents;
Rules against defamation or misrepresentation, such as misrepresenting a company’s products or services or its employees;
Rules against using employer logos or intellectual property;
Rules requiring authorization to speak on behalf of an employer; and
Rules banning disloyalty, nepotism, or self-enrichment.
The Guidance provides some examples of possible Category 2 work rules, which will warrant case-by-case analysis or even a submission to the Division of Advice for further guidance. Such rules include:
Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment and do not restrict membership in, or voting for, a union;
Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules specifically applicable to customer or proprietary information);
Rules regarding disparagement or criticism of the employer (as opposed to other employees);
Rules regulating use of the employer’s name (as opposed to the employer’s logo/trademark);
Rules generally restricting speaking to the media or third parties;
Rules banning off-duty conduct that might harm the employer (as opposed to banning specific participation in outside organizations); and
Rules against making false or inaccurate statements.
Finally, GC 18-04 provides two broad classes of work rules that generally are unlawful, and should be treated as Category 3 rules:
Confidentiality rules specifically regarding wages, benefits, or working conditions; and
Rules against joining outside organizations or voting on matters concerning employer, such as the general moonlighting rule addressed by Nicholson that prohibited employees from having another job that “could be inconsistent with the [employer’s] interests” or that “could have a detrimental impact on the [employer’s] image with customers or the public.”
Though the GC’s Guidance provides more discretion to employers in drafting and interpreting work rules, it serves as a reminder to all employers to be precise when drafting employee work rules and policies. Indeed, rules that are deemed by the Board to be not narrowly tailored are still targets, even by the Trump-era Board.
To that end, employers should follow the examples set forth in the Guidance, and, where appropriate, expressly state the legitimate business rationale for maintaining work rules and policies. Employers should, additionally, ensure that such work rules are uniform and consistently enforced.
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If you have any questions about this Guidance or other anticipated changes under the Act, please feel free to contact one of our experienced labor lawyers. We regularly assist employers with all types of union-related issues and would be pleased to help.