Nlra Case Notes

• Publication year: 2018
• Author: By Jeff Bosley and Colin Wells

NLRA Case Notes

By Jeff Bosley and Colin Wells

Jeffrey S. Bosley is a partner in the Labor and Employment Department of Davis Wright Tremaine LLP, and represents employers and management in labor and employment law matters. He can be reached by email at jeffbosley@dwt.com. Colin D. Wells is a labor and employment associate at Davis Wright Tremaine LLP, where he represents employers in labor relations and employment law issues. He can be reached by email at colinwells@dwt.com.

Board Issues New Test for Evaluating Facially Neutral Work Rules, Policies and Handbook Provisions

The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017)

A split National Labor Relations Board (Board) issued a 3-2 decision overturning a thirteen-year-old standard in favor of a new test for evaluating whether an employer's work rule, policy, or handbook provision is lawful under the National Labor Relations Act (Act). Under Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), maintenance of a work rule that did not explicitly restrict employee rights, and was not promulgated in response to protected activity, could still violate the Act if: "employees would reasonably construe the [rule] to prohibit protected concerted activity." The majority found that this standard did not sufficiently consider the legitimate interests of an employer in promulgating the rule, or the complexities of the workplace at issue, and adopted a new standard for review of workplace rules. Chairman Miscimarra and Members Kaplan and Emanuel wrote for the majority. Members Pearce and McFerran dissented.

The employer maintained a work rule prohibiting employees from using cameras or camera-enabled devices (i.e., cell phones) on the employer's premises without a valid business need and authorization from the security department. The employer is an aerospace contractor performing highly sensitive military-related work for the federal government. Applying the Lutheran Heritage standard, an Administrative Law Judge (ALJ) found the employer's no-camera rule unlawful because an employee might reasonably construe it to prohibit protected activity. The majority found that the ALJ had not given any weight to the employer's stated interests in support of the rule, including protection against international and competitive espionage, and compliance with export control obligations. The new standard requires the Board, "when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, to 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, which the majority announced will be applied retroactively, the majority found the company's no-camera rule lawful. The majority reasoned that although the rule, when applied, may infringe on some protected activity, this adverse impact is outweighed by the company's business needs to maintain security, comply with federal laws prohibiting disclosure of sensitive materials, prevent disclosure of proprietary and private information and processes, and limit the possibility of a terrorist attack.

The Board also announced that it would delineate rules into categories in future cases. These categories are:

• Category 1 (which actually has two subcategories) includes rules that when reasonably interpreted, either (a) do not prohibit or interfere with the exercise of NLRA rights, or (b) where there is potential adverse impact on NLRA rights, such impact is outweighed by a business justification for the rule. The majority announced that no-camera rules like the one at issue in Boeing would be Category 1 rules, as would other rules requiring employees to "abide by basic standards of civility."
• Category 2 rules warrant individualized scrutiny as to whether the rule prohibits or interferes with NLRA rights, and whether business justifications...