NLRB To Revisit Test for Reviewing Workplace Rules

Garrett Wozniak
Garrett Wozniak

In The Boeing Co., 365 NLRB No. 154 (2017), the National Labor Relations Board (NLRB) set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the National Labor Relations Act (NLRA).  The Board has invited briefs on “whether the Board should adopt a new legal standard to apply in cases where an employer’s maintenance of a facially-neutral work rule is alleged to violate Section 8(a)(1) of the Act.”  Stericycle, 371 NLRB No. 48 (2022).

Boeing set forth three categories of potential employer rules: 

Rules that are generally lawful to maintain (Category 1).  This category includes rules that, when reasonably interpreted, do not tend to infringe on employee NLRA rights or the potential adverse impact on protected rights is outweighed by the rule’s justifications.  While Category 1 rules are generally lawful, unions can bring an unfair labor practice charge if they are enforced in a manner that is anti-union.  Examples of Category 1 rules are those that:

  • Prohibit uncivil behavior, such as name-calling, gossip, offensive language or rudeness.
  • Ban photography and recordings at work, or require prior approval.
  • Prohibit insubordination, non-cooperation, or on-the-job conduct that adversely affects operations.
  • Prohibit disruptive behavior.
  • Protect confidential, proprietary, and customer information or documents.
  • Prohibit defamation or misrepresentation.
  • Bar use of employer logos or intellectual property.
  • Require authorization to speak for the company.
  • Ban disloyalty, nepotism, or self-enrichment. 

Rules that warrant individualized scrutiny (Category 2).  Category 2 rules are rules that warrant individualized scrutiny to determine whether the rule prohibits or interferes with NLRA rights, and if so, whether any adverse impact on employee NLRA-protected conduct is outweighed by individual justifications.  Examples of Category 2 rules include:

  • Broad conflict of interest rules that do not specifically target fraud and self-enrichment.
  • Confidentiality rules that reference “employer business” or “employee information” broadly, rather than customer or proprietary information.
  • Rules prohibiting disparagement or criticism of the employer.
  • Rules regulating the use of the employer’s name, rather than its logo or trademark.
  • Rules generally restricting speaking to media or third parties.
  • Rules banning off-duty conduct that might harm the employer, rather than insubordination or disruptive conduct at work.
  • Rules against making false and inaccurate statements generally, rather than making defamatory statements.

Rules that are unlawful (Category 3).  Category 3 rules are those rules that the Board

will find unlawful because they prohibit or limit NLRA-protected conduct and the adverse impact of the rule on NLRA rights is not outweighed by the rules’ justifications.  Examples of Category 3 rules include:

  • Confidentiality rules on wages, benefits, or working conditions.
  • Rules against joining outside organizations or voting on matters concerning the employer, which would generally be interpreted as prohibiting union participation.

The Boeing framework is poised to change under the current NLRB.  In the notice and invitation for briefs, the Board majority stated, “the Boeing Board reversed well-established precedent sua sponte and acted without the benefit of first seeking public participation.  Given the ubiquity of employer work rules and the importance of ensuring that such rules do not interfere with the exercise of employees’ rights under Section 7 of the Act any more than is justified by legitimate employer interests, the Board believes that it is appropriate, with public participation, to evaluate the standard adopted in Boeing, revised in LA Specialty Produce, [368 NLRB No. 93 (2019),] and applied in subsequent cases.”

The two dissenting Board members stated that Boeing outlines a cogent standard for reviewing employer rules:  “Together, Boeing and LA Specialty Produce—which clarified Boeing, and which the majority also has in its crosshairs—brought balance and predictability into the Board’s rules-maintenance jurisprudence. This framework should be preserved, and neither Boeing nor any of the cases tied to Boeing that the majority has signaled their likely intent to overrule should be revisited. Accordingly, we dissent from the majority’s decision to reconsider Boeing and cases applying it.”

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