New NLRB Guidance on Employee Handbooks: Complying With New Rules After the Boeing Decision Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1. WEDNESDAY, SEPTEMBER 5, 2018 Presenting a live 90-minute webinar with interactive Q&A John S. Bolesta, Special Counsel, Sheppard Mullin Richter & Hampton, Washington, D.C. Michelle S. Harkavy, Partner, FordHarrison, New York Teresa R. Tracy, Partner, Freeman Freeman & Smiley, Los Angeles
▪In Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the Board established a three-prong test for assessing the validity of rules that do not explicitly restrict activity protected by Section 7.
▪The first prong under the Lutheran Heritage test established the “reasonably construe” standard, which has proven difficult for employers to overcome
▪In The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017), the Board reassessed its standard for when the mere maintenance of a work rule violates Section 8(a)(1) of the Act by overturning the first prong of Lutheran Heritage.
▪In so doing, the Board established a new standard that focused on the balance between a work rule’s negative impact on employees’ ability to exercise their Section 7 rights and the rule’s connection to employers’ right to maintain discipline and productivity in their workplace.
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Overview of the Boeing Decision
▪Highly sensitive/classified workplace- facts will play a role
▪Boeing maintained a policy restricting the use of camera-enabled devices such as cell phones on its property- the “no-camera rule”
▪Boeing had significant justifications for the rule
▪Based on Lutheran Heritage, the ALJ reasoned that maintenance of Boeing’s no-camera rule was unlawful because employees “would reasonably construe” the rule to prohibit Section 7 activity
▪In finding the no-camera rule unlawful, the judge gave no weight to Boeing’s security needs for the rule
▪The Majority in Boeing overturned the Lutheran Heritage “reasonably construe” test
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What is the Boeing Standard for Evaluating Workplace Policies
▪When evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will now evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule
▪As the result of this new balancing test, the Board delineated three categories of employment policies, rules and handbook provisions
▪The three categories represent a classification of results from the Board’s application of the new test and are not part of the test itself
▪While Boeing identified some rules for each category, additional rules in each category will be identified in future Board decisions
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Category 1 Rules: Lawful to Maintain
▪The no-camera rule at issue in Boeing
▪Standard “harmonious interactions and relationships” rules (see William Beaumont Hospital)
▪Other rules requiring employees to abide by basic standards of civility
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Category 2 Rules: Warrant Individualized Scrutiny
▪For these rules, the Board will decide 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
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Category 3 Rules- Remain Unlawful
▪Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule
▪In Boeing, the Board provided one obvious example of a Category 3 rule (one that prohibits employees from discussing wages or benefits with one another)
