National Labor Relations Board General Counsel Issues Guidance on Handbook Rules Post-Boeing - Articles

All Content


Posted by: Greg Grisham & Joshua Sudbury on Aug 6, 2018

On June 6, 2018, Peter Robb, the National Labor Relations Board (“NLRB” or “Board”) General Counsel issued GC 18-04 entitled “Guidance on Handbook Rules Post-Boeing[i](“Guidance”) to provide “general guidance for Regions regarding the placement of various types of [employer] rules into the three categories set out in Boeing, and regarding the Section 7 interests, business justifications, and other considerations that Regions should take into account” in presenting arguments to the Board regarding the illegality of certain handbook rules. [ii]

By way of background, former General Counsel Richard F. Griffin, Jr., on March 18, 2015, issued GC15-04 “Report of the General Counsel Concerning Employer Rules”[iii] which “offer[ed] guidance on [Griffin’s]views of this evolving area of labor law, with the hope that it will help employers to review their handbooks and other rules, and conform them, if necessary, to ensure that they are lawful.”[iv] The views expressed in GC 15-04 were based on the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004)(“Lutheran Heritage”), that held ‘the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees' Section 7 activity.”[v]GC 15-04 was withdrawn by General Counsel Robb on 12/1/2017shortly after he was confirmed by the U.S. Senate. 

The “Boeing” Standard

InThe Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017) (“Boeing”), the NLRB overruled its decision in Lutheran Heritageand changed the standard for evaluating the legality of “the maintenance of facially neutral rules.”[vi]The Board in Boeingestablished a “standard that focuse[s] on the balance between the 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”. It also placed employer rules into three categories: (1) Rules that are Generally Lawful to Maintain; (2) Rules Warranting Individualized Scrutiny; and (3) Rules that are Unlawful to Maintain.[vii]

Categories of Employer Rules under Boeing:

Category 1 Rules

The Guidance first discusses employer rules that fall within Category 1 which are generally lawful “because the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of rights guaranteed by the Act, or because the potential adverse impact on protected rights is outweighed by the business justifications associated with the rule.”[viii]However, “the applicationof a facially neutral rule against employees engaged in protected concerted activity is still unlawful.”[ix]

The Guidance lists categories of employer rules (with multiple examples under each) that fall within Category 1 including: “Civility Rules;” “No-Photography Rules and No-Recording Rules;” “Rules Against Insubordination, Non-cooperation, or On-the-job Conduct that Adversely Affects Operations;” “Disruptive Behavior Rules;”“Rules Protecting Confidential, Proprietary, and Customer Information or Documents;” “Rules against Defamation or Misrepresentation;” “Rules against Using Employer Logos or Intellectual Property;” “Rules Requiring Authorization to Speak for Company;” and “Rules Banning Disloyalty, Nepotism, or Self-Enrichment.”[x]

 Category 2 Rules

In contrast to Category 1 employer rules, Category 2 Rules “must be evaluated on a case-by-case basis to determine whether the rule would interfere with rights guaranteed by the NLRA, and if so, whether any adverse impact on those rights is outweighed by legitimate justifications.”[xi]The Guidance notes that “context” must be considered and “such rules should be viewed as they would by employees who interpret work rules as they apply to the everydayness of their job.” [xii]Other factors to be considered “include the placement of the rule among other rules, the kinds of examples provided, and the type and character of the workplace” and whether the “rule has actually caused employees to refrain from Section 7 activity is a useful interpretive tool.” [xiii]The Guidance sets out some possible examples of rules that may fall in Category 2 contrasting them with Category 1 rules:[xiv]

•       Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment … and do not restrict membership in, or voting for, a union….;

•       Confidentiality rules broadly encompassing “employer business” or “employee information” (as opposed to confidentiality rules regarding customer or proprietary information… or confidentiality rules more specifically directed at employee wages, terms of employment, or working conditions…);

•       Rules regarding disparagement or criticism of the employer(as opposed to civility rules regarding disparagement of employees...);

•       Rules regulating use of the employer’s name (as opposed to rules regulating use of the employer’s logo/trademark…);

•       Rules generally restricting speaking to the media or third parties (as opposed to rules restricting speaking to the media on the employer’s behalf…);

•       Rules banning off-duty conduct that might harm the employer (as opposed to rules banning insubordinate or disruptive conduct at work… or rules specifically banning participation in outside organizations…); and

•       Rules against making false or inaccurate statements (as opposed to rules against making defamatory statements…).

 Category 3 Rules

The Guidance next addresses employer rules in Category 3 which are “generally unlawful because they would prohibit or limit NLRA-protected conduct, and the adverse impact on the rights guaranteed by the NLRA outweighs any justifications associated with the rule.”[xv]Examples of rules that the Board has found to fall within Category 3 include “Confidentiality Rules Specifically Regarding Wages, Benefits, or Working Conditions” and “Rules Against Joining Outside Organizations or Voting on Matters Concerning Employer.”[xvi]

Take Away

The NLRB’s decision in Boeingmarks a dramatic shift from Board’s prior standard in Lutheran Heritage that regularly invalidated the maintenance of facially neutral employer rules as violative of the National Labor Relations Act. However, Employers and their counsel should consult the Guidance as it is a helpful resource to use in assessing the legality of existing facially neutral work rules under the new Boeing standard.


J. Gregory Grisham is a Partner in the Nashville and Memphis Offices of Ford Harrison, LLP and focuses his practice on the representation of employers in all aspects of labor and employment law. He received his JD, with honors, from the University of Memphis, Cecil C. Humphreys School of Law in 1989. Greg may be reached at ggrisham@fordharrison.com or 615-574-6707.

Joshua J. Sudbury is a senior associate at Ford Harrison, LLP in its Nashville office, where he concentrates his practice on representing management in a variety of labor and employment matters. He received his J.D. at University of Memphis School of Law in 2009. Josh may be reached at jsudbury@fordharrison.com or 615-574-6705


[i]

[ii]Id at 1. 

[iii]

[iv]Id. at 2.

[v]Id

[vi]Guidance, at 1-2.

[vii]Id.at 1-2, 16, 18.

[viii]Id. at 2.

[ix]Id.

[x]Id. at 2-16.

[xi]Id.at 16.

[xii]Id.at 16-17.

[xiii]Id.at 17.

[xiv]Id.at 17-18.

[xv]Id. at 18. 

[xvi]Id.at 18-21.