On December 14, 2017, 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.
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.