Board Reverses Standard of Review for Facially Neutral Workplace Rules - Articles

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Posted by: Bruce Buchanan on Feb 9, 2018

In a 3-2 decision, the National Labor Relations Board (NLRB) in The Boeing Co., 365 NLRB No. 154 (2017), overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), where the Board found an employer violated the National Labor Relations Act (NLRA) by maintaining workplace rules that do not explicitly prohibit protected activities, were not adopted in response to such activities, and were not applied to restrict such activities, if the rules would be “reasonably construed” by an employee to prohibit the exercise of NLRA rights. 

Boeing challenged the Lutheran Heritage standard based primarily on its singular focus on rights protected by the NLRA and ignoring the legitimate justifications associated with employer rules. In so doing, it prevents the Board from balancing their impact on employee rights and conflicts with U.S. Supreme Court rulings and the Board’s own precedents.

In Boeing Co., the Board established a new test: 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.  When legitimate justifications outweigh a rule’s potential impact on protected rights, it will be found lawful.

 The Board announced, prospectively, three categories of rules will be delineated to provide greater clarity and certainty to employees, employers, and unions.

  • Category 1- includes rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Examples of Category 1 rules are the no-camera requirement maintained by Boeing, and rules requiring employees to abide by basic standards of civility.  Thus, the Board overruled past cases in which the Board held that employers violated the NLRA by maintaining rules requiring employees to foster “harmonious interactions and relationships” or to maintain basic standards of civility in the workplace.
  • Category 2- includes rules that warrant individualized scrutiny in each case as to 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.
  • Category 3- includes 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. An example would be a rule that prohibits employees from discussing wages or benefits with one another.

Applying the new standard, the Board concluded Boeing lawfully maintained a no-camera rule that prohibited employees from using camera-enabled devices to capture images or video without a valid business need and an approved camera permit. The evidence established the rule was justified by the need to maintain confidentiality of the work performed at its facilities, some of which is classified, and by the need to secure the facilities and work performed there against espionage by competitors, foreign governments and international terrorists.  

The Board majority, NLRB Chairman Miscimarra and members Marvin E. Kaplan and William J. Emanuel, reasoned the rule potentially affected the exercise of NLRA rights, but that the impact was comparatively slight and outweighed by important justifications, including national security concerns. 

Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he practices immigration law and employment/labor law. He is also “Of Counsel” to Siskind Susser, P.C. on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law and a former Senior Trial Specialist with the NLRB. Bruce is the co-author of the book, I-9 and E-Verify Handbook, 2d edition, concerning employer immigration compliance. He may be reached at or (615) 345-0266.