By Mitzi Wyrick
In Boeing Co., 365 NLRB No. 154, the National Labor Relations Board (“NLRB”) overturned the standard established in Lutheran Heritage Village-Livonia, 343 NLRB No. 646 (2004) for weighing the legality of employee handbook rules and workplace policies. In Lutheran Heritage Village-Livonia, the NLRB created confusion for employers when it ruled that employers violated the National Labor Relations Act (“NLRA”) by maintaining workplace rules that did 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 Section 7 rights under the NLRA.
Under Lutheran Heritage, employers were found to have violated the NLRA for having seemingly innocuous policies prohibiting “loud, abusive or foul language,” rules subjecting employees to discipline for an “inability or unwillingness to work harmoniously with other employees,” and rules prohibiting “negative energy or attitudes.” Confusingly, under Lutheran Heritage, some rules prohibiting “abusive or threatening language,” “verbal abuse” or “conduct that does not support [the Company’s] objectives” had been found lawful. Consequently, the NLRB found that the Lutheran Heritage standard led to arbitrary results.
Here, the employer, Boeing, had a no-camera rule for security reasons. The Administrative Law Judge (“ALJ”) found, under the Lutheran Heritage standard, that Boeing’s no-camera rule interfered with employees’ Section 7 rights under the NLRA. The NLRB reversed and in doing so, established a new standard: when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the NLRB will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights and (ii) legitimate justifications associated with the rule. Applying the new standard, the NLRB concluded that Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. Although the rule potentially affected the exercise of NLRA rights, the impact was comparatively slight and outweighed by important justifications, including national security concerns.
Along with the change in standard, the NLRB announced that three categories of rules will be delineated to provide greater clarity and certainty to employees, employers and unions:
- Category 1 will include rules that are 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.
- 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 are unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by legitimate justifications. An example would be a rule that prohibits employees from discussing wages or benefits.