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NLRB Overturns Precedent on Employer Work Rules
Dec 14, 2017

NLRB Overturns Precedent on Employer Work Rules

Topics: Union-Management Relations

Earlier today, the Trump NLRB, in a 3-2 decision, issued its most significant decision yet.  The Board overturned prior Board precedent established in Lutheran Heritage, 343 NLRB 646 (2004) regarding work rules and potential interference with section 7 rights.  The Trump NLRB reached its decision in Boeing Co. and Society of Prof. Eng. Employees Local 2001, establishing a new standard while noting, “Paradoxically, Lutheran Heritage is too simplistic at the same time it is too difficult to apply . . . produc[ing] rampant confusion for employers.” 

Under the new standard the Board majority held that, “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 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 Board applies this test moving forward, it will classify the rules it analyzes into one of three categories.  Generally, those categories are: 1 – lawful; 2 – warranting individualized scrutiny; and, 3 – unlawful. The Board indicated that the category of lawful rules will include those that “have a reasonable tendency to interfere with Section 7 rights, [but] the risk of such interference is outweighed by the justifications associated with the rules.” 

The Board majority applied this new standard to Boeing’s rule prohibiting employees from using cameras or cell phones to take photos or video in the workplace without a valid business need and prior approval.  It held that this rule was lawful and was justified by important national security concerns.  Board Members Pearce and McFerran each issued their own separate dissenting opinions. 

This decision will broaden employers’ ability to implement sensible and neutral rules on security, social media, confidentiality, investigation of complaints and other areas without material concern that the Board might stretch their meaning or scope to find that they are a violation of the NLRA because they could be interpreted in a way that results in an infringement on employees’ Section 7 rights.  We expect further guidance from the Board in this area as more decisions are issued applying section 7 to neutral employer policies and rules.

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Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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