NLRB General Counsel Issues Employer-Friendly Work Rule Guidance
On June 6, NLRB General Counsel Peter Robb, the NLRB’s chief prosecutor, issued a detailed, 20-page Memorandum to the NLRB Regional Offices entitled “Guidance on Handbook Rules Post-Boeing.” (As General Counsel, Robb decides which unfair labor practice charges filed in the various NLRB regional offices should be pursued. Through his memorandum, GC Robb has instructed the regional offices when charges involving the legality of employer work rules should be pursued.) In The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the NLRB established a new standard for evaluating employer rules that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule. The decision also sets forth three categories of work rules: (1) rules that are generally lawful to maintain; (2) rules that require case-by-case consideration to determine if they are lawful; and (3) rules that are unlawful. In the memorandum, he articulates the types of work rules that he believes generally will fall under each category.
As we previously reported, in, Boeing, the Trump Board overruled an earlier NLRB case, Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and adopted a new framework for deciding whether merely maintaining a facially-neutral work rule violates the National Labor Relations Act. Lutheran Heritage had set forth an analysis that, as applied, resulted in the Board finding many common-sense employer work rules unlawful. In Boeing, the NLRB established a new standard that balances the potential impact of the rule on employees’ NLRA rights against the employer’s legitimate justification for the rule and sets forth the three categories into which a work rule may fall.
Category 1 lawful rules include many rules that the NLRB likely previously would have found unlawful, such as those related to: (1) civility; (2) no-photography/no-recording; (3) insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; (4) disruptive behavior; (5) protecting confidential, proprietary, and customer information or documents; (6) prohibiting defamation or misrepresentation; (7) prohibiting use of employer logos and trademarks; (8) requiring authorization to speak for the company; and (9) banning disloyalty, nepotism, or self-enrichment.
Category 2 rules – those that warrant individualized scrutiny. GC Robb advised that “possible examples” of Category 2 rules include: (1) “Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment”; (2) “Confidentiality rules broadly encompassing ‘employer business’ or ‘employee information’ (as opposed to confidentiality rules regarding customer or proprietary information…)”; (3) “Rules regarding disparagement or criticism of the employer (as opposed to civility rules regarding the disparagement of employees…)”; (4) “Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark…)”; (5) “Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf…)”; (6) “Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work…”); and (7) “Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements…).”
Last, the GC’s examples of Category 3 unlawful rules include: (1) those that require confidentiality with respect to wages, benefits, or other working conditions and (2) those that prohibit joining outside organizations or voting on matters concerning employers.
It appears the General Counsel intends to apply The Boeing Company broadly.