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NLRB General Counsel Issues Guidance on Handbook Rules

June 11, 2018

By Mitchell J. Cogen

A memorandum released this week by National Labor Relations Board (NLRB) General Counsel Peter Robb provides guidance to NLRB Regional Offices on how they should interpret disputed employer workplace rules in light of the Board’s recent decision in The Boeing Company, 365 NLRB 154 (Dec. 14, 2017). The memorandum outlines each of the three categories of workplace rules addressed by the Board in Boeing, provides practical examples of rules that would be covered by each category, and explains the balancing test that should be applied to such rules.
 
Guidance on the New Standard for Evaluating Workplace Policies
 
The Boeing case overruled the Board’s prior standard for evaluating workplace rules set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), and established a new standard for “facially neutral” workplace rules. A facially neutral rule or policy is one which does not, as written, discriminate against a particular group. Whereas Lutheran Heritage found facially neutral rules to be unlawful if the rule could be interpreted as chilling protected activity under Section 7 of the National Labor Relations Act (NLRA), Boeing now only prohibits rules that would be interpreted as chilling Section 7 rights based on a balancing test.  The balancing test established by the Boeing Board weighs the impact of a facially neutral rule or policy on NLRA rights against an employer’s legitimate justification for the rule pursuant to the employer’s right to maintain discipline, safety and productivity in the workplace.  
 
Boeing created three categories of facially neutral employer rules: (1) rules that are generally lawful to maintain; (2) rules warranting individual scrutiny; and (3) rules unlawful to maintain. The following is a brief summary of the kinds of rules covered by each of the three categories set forth in the memorandum. It should be noted that because the legality of specific rules will always be examined based on the precise language used, the following are only general guidelines:
 
Category 1—Rules that are Generally Lawful to Maintain
 
(a) Civility rules, including prohibitions against disparagement of employees, rude and discourteous conduct;
 
(b) No-photography and no-recording rules;
 
(c) Rules prohibiting insubordination, non-cooperation or conduct negatively affecting operations;
 
(d) Rules prohibiting disruptive behavior;
 
(e) Rules protecting confidential, proprietary, and customer information;
 
(f) Rules prohibiting defamation or misrepresentation;
 
(g) Rules prohibiting use of employer logos or trademarks;
 
(h) Rules requiring authorization to speak for the company; and
 
(i)  Rules prohibiting disloyalty, nepotism, or competition/self-enrichment.
 
Category 2—Rules Warranting Individual Scrutiny
 
(a) Broad conflict-of-interest rules not focused on fraud or employee self-enrichment;
 
(b) Confidentiality rules broadly encompassing an employer’s business or information (as opposed to customer or other proprietary information);
 
(c) Rules prohibiting disparagement of the employer;
 
(d) Rules prohibiting use of an employer’s name (as opposed to logo or trademark);
 
(e) Rules generally restricting speaking to the media or third parties (as opposed to such restriction on behalf of the employer);
 
(f) Rules generally banning off-duty conduct that may harm an employer; and
 
(g) Rules prohibiting false or inaccurate statements (as opposed to defamatory statements).
 
Category 3—Rules Unlawful to Maintain
 
(a) Confidentiality rules regarding wages, benefits, or working conditions; and
 
(b) Rules prohibiting joining outside organizations or voting on matters concerning the employer.
 
What this Means for Employers
 
Since many employers in recent years modified their rules and policies to comply with the Board’s aggressive outreach into employee handbooks under Lutheran Heritage, employers should now consider revisiting their handbooks and policy manuals with an eye towards the Board’s new perspective under Boeing. The General Counsel’s new memorandum provides constructive guidance on each of the three categories of workplace rules set forth in Boeing, examples of rules that would fall into each category, and an explanation of how the Board will apply a balancing test to determine whether a disputed rule violates the NLRA. This much-needed roadmap will help employers determine whether current and future workplace rules and policies are likely to be found lawful under the NLRA.   
 
This memorandum also makes clear that the Board’s intent in Boeing was to shift to a paradigm in which “ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.” This is a very positive development for employers who are simply trying to implement rules that promote civility, cooperation, efficiency and productivity in the workplace.
 
Bullard Law has assisted countless employers in drafting and reviewing workplace rules to ensure compliance with the NLRA and developing case law. If you are in need of such a review in light of this new guidance, please contact a member of Bullard Law’s labor practice group.   
 
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